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CRIMINAL LAW
Criminal law is that branch of municipal law
which defines crimes, treats of their nature and
provides for their punishment.
It is that branch of public substantive law which
defines offenses and prescribes their penalties.
It is substantive because it defines the state’s
right to inflict punishment and the liability of the
offenders. It is public law because it deals with
the relation of the individual with the state.
Limitations on the power of Congress to
enact penal laws
1. Must be general in application.
2. Must not partake of the nature of an ex
post facto law.
3. Must not partake of the nature of a bill of
attainder.
4. Must not impose cruel and unusual
punishment or excessive fines.
Characteristics of Criminal Law
1. Generality
2. erritoriality
3. !rospectivity.
GENERALITY
Generality of criminal law means that the
criminal law of the country governs all persons
within the country regardless of their race,
belief, sex, or creed. However, it is subject to
certain exceptions brought about by
international agreement. mbassadors, chiefs
of states and other diplomatic officials are
immune from the application of penal laws when
they are in the country where they are assigned.

!ote that consuls are not diplomatic officers.
"his includes consul#general, vice#consul or any
consul in a foreign country, who are therefore,
not immune to the operation or application of the
penal law of the country where they are
assigned. Consuls are subject to the penal laws
of the country where they are assigned.
It has no reference to territory. $henever you
are as%ed to explain this, it does not include
territory. It refers to persons that may be
governed by the penal law.
TERRITORIALITY
"erritoriality means that the penal laws of the
country have force and effect only within its
territory. "t cannot penali#e crimes committed
outside the same. his is sub$ect to certain
exceptions brought about by international
agreements and practice. he territory of the
country is not limited to the land where its
sovereignty resides but includes also its
maritime and interior waters as well as its
atmosphere.
"errestrial jurisdiction is the jurisdiction
exercised over land.
&luvial jurisdiction is the jurisdiction exercised
over maritime and interior waters.
erial jurisdiction is the jurisdiction exercised
over the atmosphere.
The Archipelagic Rule
ll bodies of water comprising the maritime
'one and interior waters abounding different
islands comprising the (hilippine rchipelago
are part of the (hilippine territory regardless of
their breadth, depth, width or dimension.
)n the fluvial jurisdiction there is presently a
departure from the accepted International *aw
+ule, because the (hilippines adopted the
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rchipelagic +ule. In the International *aw
+ule, when a strait within a country has a width
of more than , miles, the center lane in excess
of the - miles on both sides is considered
international waters.
uestion ! Answer
"f a foreign merchant vessel is in the
center lane and a crime was committed there%
under the "nternational &aw 'ule% what law will
apply(
"he law of the country where that vessel
is registered will apply, because the crime is
deemed to have been committed in the high
seas.
.nder the rchipelagic +ule as declared in
rticle /, of the Constitution, all waters in the
archipelago regardless of breadth width, or
dimension are part of our national territory.
.nder this +ule, there is no more center lane, all
these waters, regardless of their dimension or
width are part of (hilippine territory.
0o if a foreign merchant vessel is in the center
lane and a crime was committed, the crime will
be prosecuted before (hilippine courts.
Three international law theories on aerial
"uris#iction
1/2 "he atmosphere over the country is free
and not subject to the jurisdiction of the
subjacent state, except for the protection
of its national security and public order.
.nder this theory, if a crime is committed
on board a foreign aircraft at the
atmosphere of a country, the law of that
country does not govern unless the
crime affects the national security.
132 +elative "heory 4 "he subjacent state
exercises jurisdiction over its
atmosphere only to the extent that it can
effectively exercise control thereof. "he
+elative "heory
.nder this theory, if a crime was
committed on an aircraft which is already
beyond the control of the subjacent
state, the criminal law of that state will
not govern anymore. 5ut if the crime is
committed in an aircraft within the
atmosphere over a subjacent state which
exercises control, then its criminal law
will govern.
1-2 bsolute "heory 4 "he subjacent state
has complete jurisdiction over the
atmosphere above it subject only to
innocent passage by aircraft of foreign
country.
.nder this theory, if the crime is
committed in an aircraft, no matter how
high, as long as it can establish that it is
within the (hilippine atmosphere,
(hilippine criminal law will govern. "his
is the theory adopted by the (hilippines.
$RO%$ECTI&ITY
"his is also called irretrospectivity.
cts or omissions will only be subject to a penal
law if they are committed after a penal law had
already ta%en effect. 6ice#versa, this act or
omission which has been committed before the
effectivity of a penal law could not be penali'ed
by such penal law because penal laws operate
only prospectively.
In some textboo%s, an exemption is said to exist
when the penal law is favorable to the offender,
in which case it would have retroactive
application7 provided that the offender is not a
habitual delin8uent and there is no provision in
the law against its retroactive application.
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"he exception where a penal law may be given
retroactive application is true only with a
repealing law. If it is an original penal law, that
exception can never operate. $hat is
contemplated by the exception is that there is an
original law and there is a repealing law
repealing the original law. It is the repealing law
that may be given retroactive application to
those who violated the original law, if the
repealing penal law is more favorable to the
offender who violated the original law. If there is
only one penal law, it can never be given
retroactive effect.
Rule of prospecti'it( also applies to
a#ministrati'e rulings an# circulars
In Co v. CA, decided on October 28, 1993, it
was held that the principle of prospectivity of
statutes also applies to administrative rulings
and circulars. In this case, Circular !o. 9 of the
:inistry of ;ustice, dated <ecember /=, />?/,
provides that @where the chec% is issued as part
of an arrangement to guarantee or secure the
payment of an obligation, whether pre#existing
or not, the drawer is not criminally liable for
either estafa or violation of 5(33.A
0ubse8uently, the administrative interpretation
of was reversed in Circular !o. /3, issued on
ugust ?, />?9, such that the claim that the
chec% was issued as a guarantee or part of an
arrangement to secure an obligation or to
facilitate collection, is no longer a valid defense
for the prosecution of 5(33. Hence, it was ruled
in Bue v. (eople that a chec% issued merely to
guarantee the performance of an obligation is,
nevertheless, covered by 5( 33. 5ut consistent
with the principle of prospectivity, the new
doctrine should not apply to parties who had
relied on the old doctrine and acted on the faith
thereof. !o retrospective effect.
Effect of repeal of penal law to lia)ilit( of
offen#er
In some commentaries, there are references as
to whether the repeal is express or implied.
$hat affects the criminal liability of an offender
is not whether a penal law is expressly or
impliedly repealed7 it is whether it is absolutely
or totally repealed, or relatively or partially
repealed.
Total or absolute, or partial or relative repeal.
## s to the effect of repeal of penal law to the
liability of offender, 8ualify your answer by
saying whether the repeal is absolute or total or
whether the repeal is partial or relative only.
repeal is absolute or total when the crime
punished under the repealed law has been
decriminali'ed by the repeal. 5ecause of the
repeal, the act or omission which used to be a
crime is no longer a crime. n example is
+epublic ct !o. C-,-, which decriminali'ed
subversion.
repeal is partial or relative when the crime
punished under the repealed law continues to
be a crime inspite of the repeal. "his means
that the repeal merely modified the conditions
affecting the crime under the repealed law. "he
modification may be prejudicial or beneficial to
the offender. Hence, the following ruleD
)onse*uences if repeal of penal law is total or
absolute
1/2 If a case is pending in court involving the
violation of the repealed law, the same
shall be dismissed, even though the
accused may be a habitual delin8uent.
"his is so because all persons accused
of a crime are presumed innocent until
they are convicted by final judgment.
"herefore, the accused shall be
ac8uitted.
132 If a case is already decided and the
accused is already serving sentence by
final judgment, if the convict is not a
habitual delin8uent, then he will be
entitled to a release unless there is a
reservation clause in the penal law that it
will not apply to those serving sentence
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at the time of the repeal. 5ut if there is
no reservation, those who are not
habitual delin8uents even if they are
already serving their sentence will
receive the benefit of the repealing law.
"hey are entitled to release.
"his does not mean that if they are not
released, they are free to escape. If they
escape, they commit the crime of
evasion of sentence, even if there is no
more legal basis to hold them in the
penitentiary. "his is so because
prisoners are accountabilities of the
government7 they are not supposed to
step out simply because their sentence
has already been, or that the law under
which they are sentenced has been
declared null and void.
If they are not discharged from
confinement, a petition for habeas
corpus should be filed to test the legality
of their continued confinement in jail.
If the convict, on the other hand, is a
habitual delin8uent, he will continue
serving the sentence in spite of the fact
that the law under which he was
convicted has already been absolutely
repealed. "his is so because penal laws
should be given retroactive application to
favor only those who are not habitual
delin8uents.
uestion ! Answer
+% a prisoner% learns that he is already
overstaying in $ail because his $ail guard% ,% who
happens to be a law student advised him that
there is no more legal ground for his continued
imprisonment% and , told him that he can go. +
got out of $ail and went home. -as there any
crime committed(
s far as , the prisoner who is serving
sentence, is concerned, the crime committed is
evasion of sentence.
s far as 5, the jail guard who allowed
to go, is concerned, the crime committed is
infidelity in the custody of prisoners.
)onse*uences if repeal of penal law is partial or
relative
1/2 If a case is pending in court involving the
violation of the repealed law, and the
repealing law is more favorable to the
accused, it shall be the one applied to
him. 0o whether he is a habitual
delin8uent or not, if the case is still
pending in court, the repealing law will
be the one to apply unless there is a
saving clause in the repealing law that it
shall not apply to pending causes of
action.
.2/ If a case is already decided and the
accused is already serving sentence by
final judgment, even if the repealing law
is partial or relative% the crime still
remains to be a crime. hose who are
not habitual delin*uents will benefit on
the effect of that repeal% so that if the
repeal is more lenient to them% it will be
the repealing law that will henceforth
apply to them.
&or example, under the original law, the
penalty is six years. .nder the repealing
law, it is four years. "hose convicted
under the original law will be subjected
to the four#year penalty. "his retroactive
application will not be possible if there is
a saving clause that provides that it
should not be given retroactive effect.
.nder rticle 33, even if the offender is
already convicted and serving sentence,
a law which is beneficial shall be applied
to him unless he is a habitual delin8uent
in accordance with +ule = of rticle ,3.
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Express or implied repeal. 0 Express or
implied repeal refers to the manner the repeal is
done.
Express repeal ta%es place when a subse8uent
law contains a provision that such law repeals
an earlier enactment. &or example, in +epublic
ct !o. ,93= 1"he <angerous <rugs ct of
/>C32, there is an express provision of repeal of
"itle 6 of the +evised (enal Code.
Implied repeals are not favored. It re8uires a
competent court to declare an implied repeal.
n implied repeal will ta%e place when there is a
law on a particular subject matter and a
subse8uent law is passed also on the same
subject matter but is inconsistent with the first
law, such that the two laws cannot stand
together, one of the two laws must give way. It
is the earlier that will give way to the later law
because the later law expresses the recent
legislative sentiment. 0o you can have an
implied repeal when there are two inconsistent
laws. $hen the earlier law does not expressly
provide that it is repealing an earlier law, what
has ta%en place here is implied repeal. If the
two laws can be reconciled, the court shall
always try to avoid an implied repeal. &or
example, under rticle >, light felonies are those
infractions of the law for the commission of
which a penalty of arresto mayor or a fine not
exceeding (3FF.FF or both is provided. )n the
other hand, under rticle 3,, a fine whether
imposed as a single or an alternative penalty, if
it exceeds (,,FFF.FF but is not less than (
3FF.FF, is considered a correctional penalty.
"hese two articles appear to be inconsistent.
0o to harmoni'e them, the 0upreme Court ruled
that if the issue involves the prescription of the
crime, that felony will be considered a light
felony and, therefore, prescribes within two
months. 5ut if the issue involves prescription of
the penalty, the fine of (3FF.FF will be
considered correctional and it will prescribe
within /F years. Clearly, the court avoided the
collision between the two articles.
Conse8uences if repeal of penal law is express
or implied
1/2 If a penal law is impliedly repealed, the
subse8uent repeal of the repealing law
will revive the original law. 0o the act or
omission which was punished as a crime
under the original law will be revived and
the same shall again be crimes although
during the implied repeal they may not
be punishable.

132 If the repeal is express, the repeal of the
repealing law will not revive the first law,
so the act or omission will no longer be
penali'ed.
"hese effects of repeal do not apply to self#
repealing laws or those which have automatic
termination. n example is the +ent Control
*aw which is revived by Congress every two
years.
$hen there is a repeal, the repealing law
expresses the legislative intention to do away
with such law, and, therefore, implies a
condonation of the punishment. 0uch legislative
intention does not exist in a self#terminating law
because there was no repeal at all.
*A%IC MA+IM% IN CRIMINAL LAW
,octrine of $ro Reo
$henever a penal law is to be construed or
applied and the law admits of two interpretations
4 one lenient to the offender and one strict to
the offender 4 that interpretation which is lenient
or favorable to the offender will be adopted.
"his is in consonance with the fundamental rule
that all doubts shall be construed in favor of the
accused and consistent with presumption of
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innocence of the accused. "his is peculiar only
to criminal law.
uestion ! Answer
1ne boy was accused of parricide and
was found guilty. his is punished by reclusion
perpetua to death. +ssuming you were the
$udge% would you give the accused the benefit of
the "ndeterminate 2entence &aw ."2&+-/( he
"2&+- does not apply when the penalty
imposed is life imprisonment of death. -ould
you consider the penalty imposable or the
penalty imposed% taking into consideration the
mitigating circumstance of minority(
If you will answer GnoG, then you go
against the <octrine of (ro +eo because you
can interpret the I0*$ in a more lenient
manner. "a%ing into account the doctrine, we
interpret the I0*$ to mean that the penalty
imposable and not the penalty prescribed by
law, since it is more favorable for the accused to
interpret the law.
Nullum crimen- nulla poena sine lege
"here is no crime when there is no law
punishing the same. "his is true to civil law
countries, but not to common law countries.
5ecause of this maxim, there is no common law
crime in the (hilippines. !o matter how
wrongful, evil or bad the act is, if there is no law
defining the act, the same is not considered a
crime.
Common law crimes are wrongful acts which the
communityHsociety condemns as contemptible,
even though there is no law declaring the act
criminal.
!ot any law punishing an act or omission may
be valid as a criminal law. If the law punishing
an act is ambiguous, it is null and void.
Actus non facit reum- nisi mens sit rea
"he act cannot be criminal where the mind is
not criminal. "his is true to a felony
characteri'ed by dolo, but not a felony resulting
from culpa. "his maxim is not an absolute one
because it is not applied to culpable felonies, or
those that result from negligence.
.tilitarian Theor( or $rotecti'e Theor(
"he primary purpose of the punishment under
criminal law is the protection of society from
actual and potential wrongdoers. "he courts,
therefore, in exacting retribution for the wronged
society, should direct the punishment to
potential or actual wrongdoers, since criminal
law is directed against acts and omissions which
the society does not approve. Consistent with
this theory, the mala prohibita principle which
punishes an offense regardless of malice or
criminal intent, should not be utili'ed to apply
the full harshness of the special law.
In Mano v CA, decided on !une 2", 1992, the
0upreme Court ac8uitted :agno of violation of
5atas (ambansa 5lg. 33 when he acted without
malice. "he wrongdoer is not :agno but the
lessor who deposited the chec%s. He should
have returned the chec%s to :agno when he
pulled out the e8uipment. "o convict the
accused would defeat the noble objective of the
law and the law would be tainted with
materialism and opportunism.
,E&ELO$MENT O/ CRIMINAL LAW IN T0E
$0ILI$$INE%
Co#e of 1alantiao
If you will be as%ed about the development of
criminal law in the (hilippines, do not start with
the +evised (enal Code. .nder the Code of
Ialantiao, there were penal provisions. .nder
this code, if a man would have a relation with a
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married woman, she is penali'ed. dultery is a
crime during those days. Even offending
religious things, such as gods, are penali'ed.
"he Code of Ialantiao has certain penal
provisions. "he &ilipinos have their own set of
penology also.
%panish Co#igo $enal
$hen the 0panish Coloni'ers came, the
0panish Codigo (enal was made applicable and
extended to the (hilippines by +oyal <ecree of
/?CF. "his was made effective in the
(hilippines in ;uly /9, /?C,.
Who is Rafael ,el $an2
He drafted a correctional code which was after
the 0panish Codigo (enal was extended to the
(hilippines. 5ut that correctional code was
never enacted into law. Instead, a committee
was organi'ed headed by then nacleto <ia'.
"his committee was the one who drafted the
present +evised (enal Code.
The present Re'ise# $enal Co#e
$hen a committee to draft the +evised (enal
Code was formed, one of the reference that they
too% hold of was the correctional code of <el
(an. In fact, many provisions of the +evised
(enal Code were no longer from the 0panish
(enal Code7 they were lifted from the
correctional code of <el (an. 0o it was him who
formulated or paraphrased this provision ma%ing
it simpler and more understandable to &ilipinos
because at that time, there were only a handful
who understood 0panish.
Co#e of Crimes )( Gue'arra
<uring the time of (resident :anuel +oxas, a
code commission was tas%ed to draft a penal
code that will be more in %eeping with the
custom, traditions, traits as well as beliefs of the
&ilipinos. <uring that time, the code committee
drafted the so#called Code of Crimes. "his too,
slept in Congress. It was never enacted into
law. mong those who participated in drafting
the Code of Crimes was ;udge Guellermo
Guevarra.
0ince that Code of Crimes was never enacted
as law, he enacted his own code of crimes. 5ut
it was the Code of Crimes that that was
presented in the 5atasan as Cabinet 5ill no. 3.
5ecause the code of crimes prepared by
Guevarra was more of a moral code than a
penal code, there were several oppositions
against the code.
$ropose# $enal Co#e of the $hilippines
"hrough ssemblyman Estelito :endo'a, the
.( *aw Center formed a committee which
drafted the (enal Code of the (hilippines. "his
(enal Code of the (hilippines was substituted
as Cabinet 5ill no. 3 and this has been
discussed in the floor of the 5atasang
(ambansa. 0o the Code of Crimes now in
Congress was not the Code of Crimes during
the time of (resident +oxas. "his is a different
one. Cabinet 5ill !o. 3 is the (enal Code of the
(hilippines drafted by a code committee chosen
by the .( *aw Center, one of them was
(rofessor )rtega. "here were seven members
of the code committee. It would have been
enacted into law it not for the dissolution of the
5atasang (ambansa dissolved. "he Congress
was planning to revive it so that it can be
enacted into law.
%pecial Laws
<uring :artial *aw, there are many (residential
<ecrees issued aside from the special laws
passed by the (hilippine *egislature
Commission. ll these special laws, which are
penal in character, are part of our (enal Code.
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,I//ERENT $0ILO%O$0IE% .N,ERLYING
T0E CRIMINAL LAW %Y%TEM
1. )lassical or 3uristic !hilosophy
2. !ositivit or 'ealistic !hilosophy
3. 4cletic or Mixed !hilosophy
Classical or 3uristic $hilosoph(
5est remembered by the maxim @n eye for an
eye, a tooth for a tooth.A J!oteD If you want to
impress the examiner, use the latin version 4
)culo pro oculo, dente pro dente.K
"he purpose of penalty is retribution. "he
offender is made to suffer for the wrong he has
done. "here is scant regard for the human
element of the crime. "he law does not loo%
into why the offender committed the crime.
Capital punishment is a product of this %ind of
this school of thought. :an is regarded as a
moral creature who understands right from
wrong. 0o that when he commits a wrong, he
must be prepared to accept the punishment
therefore.
$ositi'ist or Realistic $hilosoph(
"he purpose of penalty is reformation. "here is
great respect for the human element because
the offender is regarded as socially sic% who
needs treatment, not punishment. Cages are
li%e asylums, jails li%e hospitals. "hey are there
to segregate the offenders from the @goodA
members of society.
&rom this philosophy came the jury system,
where the penalty is imposed on a case to case
basis after examination of the offender by a
panel of social scientists which do not include
lawyers as the panel would not want the law to
influence their consideration.
Crimes are regarded as social phenomena
which constrain a person to do wrong although
not of his own volition. tendency towards
crime is the product of one’s environment.
"here is no such thing as a natural born %iller.
"his philosophy is critici'ed as being too lenient.
Eclectic or Mi4e# $hilosoph(
"his combines both positivist and classical
thin%ing. Crimes that are economic and social
and nature should be dealt with in a positivist
manner7 thus, the law is more compassionate.
Heinous crimes should be dealt with in a
classical manner7 thus, capital punishment.
0ince the +evised (enal Code was adopted
from the 0panish Codigo (enal, which in turn
was copied from the &rench Code of /?/F which
is classical in character, it is said that our Code
is also classical. "his is no longer true because
with the merican occupation of the (hilippines,
many provisions of common law have been
engrafted into our penal laws. "he +evised
(enal Code today follows the mixed or eclectic
philosophy. &or example, intoxication of the
offender is considered to mitigate his criminal
liability, unless it is intentional or habitual7 the
age of the offender is considered7 and the
woman who %illed her child to conceal her
dishonor has in her favor a mitigating
circumstance.
MALA IN %E AN, MALA $RO0I*ITA
5iolations of the 'evised !enal )ode are
referred to as malum in se% which literally
means% that the act is inherently evil or bad or
per se wrongful. 1n the other hand% violations of
special laws are generally referred to as malum
prohibitum.
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6ote% however% that not all violations of special
laws are mala prohibita. -hile intentional
felonies are always mala in se% it does not follow
that prohibited acts done in violation of special
laws are always mala prohibita. 4ven if the
crime is punished under a special law% if the act
punished is one which is inherently wrong% the
same is malum in se% and% therefore% good faith
and the lack of criminal intent is a valid defense7
unless it is the product of criminal negligence or
culpa.
&ikewise when the special laws re*uires that the
punished act be committed knowingly and
willfully% criminal intent is re*uired to be proved
before criminal liability may arise.
-hen the act penali#ed is not inherently wrong%
it is wrong only because a law punishes the
same.
8or example% !residential 9ecree 6o. :32
punishes piracy in !hilippine waters and the
special law punishing brigandage in the
highways. hese acts are inherently wrong and
although they are punished under special law%
the acts themselves are mala in se7 thus% good
faith or lack of criminal intent is a defense.
9istinction between crimes punished under the
'evised !enal )ode and crimes punished under
special laws
1. +s to moral trait of the offender
"n crimes punished under the 'evised
!enal )ode% the moral trait of the
offender is considered. his is why
liability would only arise when there is
dolo or culpa in the commission of the
punishable act.
"n crimes punished under special laws%
the moral trait of the offender is not
considered7 it is enough that the
prohibited act was voluntarily done.
2. +s to use of good faith as defense
"n crimes punished under the 'evised
!enal )ode% good faith or lack of criminal
intent is a valid defense7 unless the crime
is the result of culpa
"n crimes punished under special laws%
good faith is not a defense
3. +s to degree of accomplishment of the
crime
"n crimes punished under the 'evised
!enal )ode% the degree of
accomplishment of the crime is taken
into account in punishing the offender7
thus% there are attempted% frustrated% and
consummated stages in the commission
of the crime.
"n crimes punished under special laws%
the act gives rise to a crime only when it
is consummated7 there are no attempted
or frustrated stages% unless the special
law expressly penali#e the mere attempt
or frustration of the crime.
4. +s to mitigating and aggravating
circumstances
"n crimes punished under the 'evised
!enal )ode% mitigating and aggravating
circumstances are taken into account in
imposing the penalty since the moral trait
of the offender is considered.
"n crimes punished under special laws%
mitigating and aggravating
circumstances are not taken into account
in imposing the penalty.
:. +s to degree of participation
"n crimes punished under the 'evised
!enal )ode% when there is more than
one offender% the degree of participation
of each in the commission of the crime is
taken into account in imposing the
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penalty7 thus% offenders are classified as
principal% accomplice and accessory.
"n crimes punished under special laws%
the degree of participation of the
offenders is not considered. +ll who
perpetrated the prohibited act are
penali#ed to the same extent. here is
no principal or accomplice or accessory
to consider.
uestions ! Answers
1. hree hi$ackers accosted the pilot
of an airplane. hey compelled the pilot to
change destination% but before the same could
be accomplished% the military was alerted. -hat
was the crime committed(
Grave coercion. "here is no such thing
as attempted hijac%ing. .nder special laws, the
penalty is not imposed unless the act is
consummated. Crimes committed against the
provisions of a special law are penali'ed only
when the pernicious effects, which such law
see%s to prevent, arise.
2. + mayor awarded a concession to
his daughter. 2he was also the highest bidder.
he award was even endorsed by the municipal
council as the most advantageous to the
municipality. he losing bidder challenged the
validity of the contract% but the trial court
sustained its validity. he case goes to the
2andiganbayan and the mayor gets convicted
for violation of 'epublic +ct 6o. 3;1< .+nti=Graft
and )orrupt !ractices +ct/. >e appeals alleging
his defenses raised in the 2andiganbayan that
he did not profit from the transaction% that the
contract was advantageous to the municipality%
and that he did not act with intent to gain. 'ule.
;udgment affirmed. "he contention of
the mayor that he did not profit anything from
the transaction, that the contract was
advantageous to the municipality, and that he
did not act with intent to gain, is not a defense.
"he crime involved is malum prohibitum.
In the case of #eople v. $unico, an election
registrar was prosecuted for having failed to
include in the voter’s register the name of a
certain voter. "here is a provision in the election
law which proscribes any person from
preventing or disenfranchising a voter from
casting his vote. In trial, the election registrar
raised as good faith as a defense. "he trial
court convicted him saying that good faith is not
a defense in violation of special laws. )n
appeal, it was held by he 0upreme Court that
disenfranchising a voter from casting his vote is
not wrong because there is a provision of law
declaring it as a crime, but because with or
without a law, that act is wrong. In other words,
it is malum in se. Conse8uently, good faith is a
defense. 0ince the prosecution failed to prove
that the accused acted with malice, he was
ac8uitted.
Test to #etermine if 'iolation of special law is
malum prohi)itum or malum in se
naly'e the violationD Is it wrong because there
is a law prohibiting it or punishing it as suchL If
you remove the law, will the act still be wrongL
If the wording of the law punishing the crime
uses the word @willfullyA, then malice must be
proven. $here malice is a factor, good faith is a
defense.
In violation of special law, the act constituting
the crime is a prohibited act. "herefore culpa is
not a basis of liability, unless the special law
punishes an omission.
$hen given a problem, ta%e note if the crime is
a violation of the +evised (enal Code or a
special law.
/ELONY- O//EN%E- MI%,EMEANOR AN,
CRIME
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/elon(
crime under the +evised (enal Code is
referred to as a felony. <o not use this term in
reference to a violation of special law.

Offense
crimes punished under a special law is called
as statutory offense.

Mis#emeanor
minor infraction of the law, such as a violation
of an ordinance, is referred to as a
misdemeanor.

Crime
$hether the wrongdoing is punished under the
+evised (enal Code or under a special law, the
generic word crime can be used.
%CO$E O/ A$$LICATION O/ T0E
$RO&I%ION% O/ T0E RE&I%E, $ENAL
CO,E
"he provision in rticle 3 embraces two scopes
of applicationsD
1/2 Intraterritorial 4 refers to the application
of the +evised (enal Code within the
(hilippine territory7
132 Extraterritorial 4 refers to the application
of the +evised (enal Code outside the
(hilippine territory.
Intraterritorial application
In the intraterritorial application of the +evised
(enal Code, rticle 3 ma%es it clear that it does
not refer only to (hilippine archipelago but it
also includes the atmosphere, interior waters
and maritime 'one. 0o whenever you use the
word territory, do not limit this to land area only.
s far as jurisdiction or application of the
+evised (enal Code over crimes committed on
maritime 'ones or interior waters, the
rchipelagic +ule shall be observed. 0o the
three#mile limit on our shoreline has been
modified by the rule. ny crime committed in
interior waters comprising the (hilippine
archipelago shall be subject to our laws
although committed on board a foreign
merchant vessel.
vessel is considered a (hilippine ship only
when it is registered in accordance with
(hilippine laws. .nder international law, as long
as such vessel is not within the territorial waters
of a foreign country, (hilippine laws shall
govern.
E4traterritorial application
Extraterritorial application of the +evised (enal
Code on crime committed on board (hilippine
ship or airship refers only to a situation where
the (hilippine ship or airship is not within the
territorial waters or atmosphere of a foreign
country. )therwise, it is the foreign country’s
criminal law that will apply.
However, there are two situations where the
foreign country may not apply its criminal law
even if a crime was committed on board a
vessel within its territorial waters and these areD
1/2 $hen the crime is committed in a war
vessel of a foreign country, because war
vessels are part of the sovereignty of the
country to whose naval force they
belong7
132 $hen the foreign country in whose
territorial waters the crime was
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committed adopts the &rench +ule,
which applies only to merchant vessels,
except when the crime committed affects
the national security or public order of
such foreign country.
The /rench Rule
"he &rench +ule provides that the nationality of
the vessel follows the flag which the vessel flies,
unless the crime committed endangers the
national security of a foreign country where the
vessel is within jurisdiction in which case such
foreign country will never lose jurisdiction over
such vessel.
The American or Anglo5%a4on Rule
"his rule strictly enforces the territoriality of
criminal law. "he law of the foreign country
where a foreign vessel is within its jurisdiction is
strictly applied, except if the crime affects only
the internal management of the vessel in which
case it is subject to the penal law of the country
where it is registered.
5oth the rules apply only to a foreign merchant
vessel if a crime was committed aboard that
vessel while it was in the territorial waters of
another country. If that vessel is in the high
seas or open seas, there is no occasion to apply
the two rules. If it is not within the jurisdiction of
any country, these rules will not apply.
uestion ! Answer
+ vessel is not registered in the
!hilippines. + crime is committed outside
!hilippine territorial waters. hen the vessel
entered our territory. -ill the 'evised !enal
)ode apply(
Mes. .nder the old +ules of Criminal
(rocedure, for our courts to ta%e cogni'ance of
any crime committed on board a vessel during
its voyage, the vessel must be registered in the
(hilippines in accordance with (hilippine laws.
.nder the +evised +ules of Criminal (rocedure,
however, the re8uirement that the vessel must
be licensed and registered in accordance with
(hilippine laws has been deleted from 0ection
3=, paragraph c of +ule //F of the +ules of
Court. "he intention is to do away with that
re8uirement so that as long as the vessel is not
registered under the laws of any country, our
courts can ta%e cogni'ance of the crime
committed in such vessel.
:ore than this, the revised provision added the
phrase @in accordance with generally accepted
principles of International *awA. 0o the intention
is clear to adopt generally accepted principles of
international law in the matter of exercising
jurisdiction over crimes committed in a vessel
while in the course of its voyage. .nder
international law rule, a vessel which is not
registered in accordance with the laws of any
country is considered a pirate vessel and piracy
is a crime against humanity in general, such that
wherever the pirates may go, they can be
prosecuted.
(rior to the revision, the crime would not have
been prosecutable in our court. $ith the
revision, registration is not anymore a
re8uirement and replaced with generally
accepted principles of international law. (iracy
is considered a crime against the law of nations.
In your answer, reference should be made to the
provision of paragraph c of 0ection/= of the
+evised +ules of Criminal (rocedure. "he
crime may be regarded as an act of piracy as
long as it is done with @intent to gainA.
When pu)lic officers or emplo(ees commit
an offense in the e4ercise of their functions
"he most common subject of bar problems in
rticle 3 is paragraph 9D @$hile being public
officers or employees, JtheyK should commit an
offense in the exercise of their functionsDA
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s a general rule, the +evised (enal Code
governs only when the crime committed pertains
to the exercise of the public official’s functions,
those having to do with the discharge of their
duties in a foreign country. "he functions
contemplated are those, which are, under the
law, to be performed by the public officer in the
&oreign 0ervice of the (hilippine government in
a foreign country.
ExceptionD "he +evised (enal Code governs if
the crime was committed within the (hilippine
Embassy or within the embassy grounds in a
foreign country. "his is because embassy
grounds are considered an extension of
sovereignty.
IllustrationD
(hilippine consulate official who is validly
married here in the (hilippines and who marries
again in a foreign country cannot be prosecuted
here for bigamy because this is a crime not
connected with his official duties. However, if
the second marriage was celebrated within the
(hilippine embassy, he may be prosecuted
here, since it is as if he contracted the marriage
here in the (hilippines.
uestion ! Answer
+ consul was to take a deposition in a
hotel in 2ingapore. +fter the deposition% the
deponent approached the consul?s daughter and
re*uested that certain parts of the deposition be
changed in consideration for @1;%;;;.;;. he
daughter persuaded the consul and the latter
agreed. -ill the crime be sub$ect to the 'evised
!enal )ode( "f so% what crime or crimes have
been committed(
Mes. &alsification.
!ormally, the ta%ing of the deposition is
not the function of the consul, his function being
the promotion of trade and commerce with
another country. .nder the +ules of Court,
however, a consul can ta%e depositions or
letters rogatory. "here is, therefore, a definite
provision of the law ma%ing it the consul’s
function to ta%e depositions. $hen he agreed to
the falsification of the deposition, he was doing
so as a public officer in the service of the
(hilippine government.
(aragraph = of rticle 3, use the phrase @as
defined in "itle )ne of 5oo% "wo of this Code.A
"his is a very important part of the exception,
because "itle I of 5oo% 3 1crimes against
national security2 does not include rebellion. 0o
if acts of rebellion were perpetrated by &ilipinos
who were in a foreign country, you cannot give
territorial application to the +evised (enal Code,
because "itle I of 5oo% 3 does not include
rebellion.
IllustrationD
$hen a &ilipino who is already married in the
(hilippines, contracts another marriage abroad,
the crime committed is bigamy. 5ut the &ilipino
can not be prosecuted when he comes bac% to
the (hilippines, because the bigamy was
committed in a foreign country and the crime is
not covered by paragraph = of rticle 3.
However, if the &ilipino, after the second
marriage, returns to the (hilippines and cohabits
here with his second wife, he commits the crime
of concubinage for which he can be prosecuted.
"he +evised (enal Code shall not apply to any
other crime committed in a foreign country
which does not come under any of the
exceptions and which is not a crime against
national security.
0OW A /ELONY MAY ARI%E
$unisha)le )( the Re'ise# $enal Co#e
he term felony is limited only to violations of the
'evised !enal )ode. -hen the crime is
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punishable under a special law you do not refer
to this as a felony. 2o whenever you encounter
the term felony% it is to be understood as
referring to crimes under the 'evised !enal
)ode
.
his is important because there are certain
provisions in the 'evised !enal )ode where the
term AfelonyB is used% which means that the
provision is not extended to crimes under
special laws. + specific instance is found in
+rticle 1C; 0 Duasi='ecidivism% which readsE
+ person who shall commit a
felony after having been
convicted by final $udgment%
before beginning to serve
sentence or while serving the
same% shall be punished under
the maximum period of the
penalty.
6ote that the word FfelonyF is used.
uestions ! Answers
1. "f a prisoner who is serving
sentence is found in possession of dangerous
drugs% can he be considered a *uasi=recidivist(
!o. "he violation of (residential <ecree
!o. ,93= 1"he <angerous <rugs ct of />C32 is
not a felony. "he provision of rticle /,F
specifically refers to a felony and felonies are
those acts and omissions punished under the
+evised (enal Code.
2. "s illegal possession of bladed
weapon a felony(
!o. It is not under the +evised (enal
Code.
An act or omission
"o be considered as a felony there must be an
act or omission7 a mere imagination no matter
how wrong does not amount to a felony. n act
refers to any %ind of body movement that
produces change in the outside world. &or
example, if , a passenger in a jeepney seated
in front of a lady, started putting out his tongue
suggesting lewdness, that is already an act in
contemplation of criminal law. He cannot claim
that there was no crime committed. If
scratches something, this is already an act
which annoys the lady he may be accused of
unjust vexation, not malicious mischief.
,olo or culpa
However, It does not mean that if an act or
omission is punished under the +evised (enal
Code, a felony is already committed. "o be
considered a felony, it must also be done with
dolo or culpa.
.nder rticle -, there is dolo when there is
deceit. "his is no longer true. t the time the
+evised (enal Code was codified, the term
nearest to dolo was deceit. However, deceit
means fraud, and this is not the meaning of
dolo.
<olo is deliberate intent otherwise referred to as
criminal intent, and must be coupled with
freedom of action and intelligence on the part of
the offender as to the act done by him.
"he term, therefore, has three re8uisites on the
part of the offenderD
1/2 Criminal intent7

132 &reedom of action7 and

1-2 Intelligence.
If any of these is absent, there is no dolo. If
there is no dolo, there could be no intentional
felony.
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uestion ! Answer
-hat re*uisites must concur before a
felony may be committed(
"here must be 1/2 an act or omission7 132
punishable by the +evised (enal Code7 and 1-2
the act is performed or the omission incurred by
means of dolo or culpa.
5ut although there is no intentional felony, there
could be a culpable felony. Culpa re8uires the
concurrence of three re8uisitesD
1/2 criminal negligence on the part of the
offender , that is, the crime was the
result of negligence, rec%less
imprudence, lac% of foresight or lac% of
s%ill7
132 freedom of action on the part of the
offender, that is, he was not acting under
duress7 and
1-2 Intelligence on the part of the offender in
performing the negligent act.
5etween dolo and culpa, the distinction lies on
the criminal intent and criminal negligence. If
any of these re8uisites is absent, there can be
no dolo nor culpa. $hen there is no dolo or
culpa, a felony cannot arise.
uestion ! Answer
-hat do you understand by
AvoluntarinessB in criminal law(
"he word voluntariness in criminal law
does not mean acting in one’s own volition. In
criminal law, voluntariness comprehends the
concurrence of freedom of action, intelligence
and the fact that the act was intentional. In
culpable felonies, there is no voluntariness if
either freedom, intelligence or imprudence,
negligence, lac% of foresight or lac% of s%ill is
lac%ing. $ithout voluntariness, there can be no
dolo or culpa, hence, there is no felony.
In a case decided by the 0upreme Court, two
persons went wild boar hunting. )n their way,
they met (edro standing by the door of his
house and they as%ed him where they could find
wild boars. (edro pointed to a place where wild
boars were supposed to be found, and the two
proceeded thereto. .pon getting to the place,
they saw something moving, they shot,
unfortunately the bullet ricocheted %illing (edro.
It was held that since there was neither dolo nor
culpa, there is no criminal liability.
In %$ v. &indo', accused had an altercation
with N. N snatched the bolo from the accused.
"o prevent N from using his bolo on him,
accused tried to get it from N. .pon pulling it
bac% towards him, he hit someone from behind,
instantly %illing the latter. "he accused was
found to be not liable. In criminal law, there is
pure accident, and the principle damnum
abs8ue injuria is also honored.
Even culpable felonies re8uire voluntariness. It
does not mean that if there is no criminal intent,
the offender is absolved of criminal liability,
because there is culpa to consider.
uestion ! Answer
May a crime be committed without
criminal intent(
Mes. Criminal intent is not necessary in
these casesD
1/2 $hen the crime is the product of
culpa or negligence, rec%less imprudence, lac%
of foresight or lac% of s%ill7
132 $hen the crime is a prohibited
act under a special law or what is called malum
prohibitum.
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Criminal Intent
Criminal Intent is not deceit. <o not use deceit
in translating dolo, because the nearest
translation is deliberate intent.
In criminal law, intent is categori'ed into twoD
1/2 General criminal intent7 and
132 0pecific criminal intent.
General criminal intent is presumed from the
mere doing of a wrong act. "his does not
re8uire proof. "he burden is upon the wrong
doer to prove that he acted without such
criminal intent.

0pecific criminal intent is not presumed because
it is an ingredient or element of a crime, li%e
intent to %ill in the crimes of attempted or
frustrated homicideHparricideHmurder. "he
prosecution has the burden of proving the same.
<istinction between intent and discernment
Intent is the determination to do a certain thing,
an aim or purpose of the mind. It is the design
to resolve or determination by which a person
acts.
)n the other hand, discernment is the mental
capacity to tell right from wrong. It relates to the
moral significance that a person ascribes to his
act and relates to the intelligence as an element
of dolo, distinct from intent.
<istinction between intent and motive
Intent is demonstrated by the use of a particular
means to bring about a desired result 4 it is not
a state of mind or a reason for committing a
crime.
)n the other hand, motive implies motion. It is
the moving power which impels one to do an
act. $hen there is motive in the commission of
a crime, it always comes before the intent. 5ut
a crime may be committed without motive.
If the crime is intentional, it cannot be committed
without intent. Intent is manifested by the
instrument used by the offender. "he specific
criminal intent becomes material if the crime is
to be distinguished from the attempted or
frustrated stage. &or example, a husband came
home and found his wife in a pleasant
conversation with a former suitor. "hereupon,
he got a %nife. "he moving force is jealousy.
"he intent is the resort to the %nife, so that
means he is desirous to %ill the former suitor.
Even if the offender states that he had no
reason to %ill the victim, this is not criminal
intent. Criminal intent is the means resorted to
by him that brought about the %illing. If we
e8uate intent as a state of mind, many would
escape criminal liability.
In a case where mother and son were living in
the same house, and the son got angry and
strangled his mother, the son, when prosecuted
for parricide, raised the defense that he had no
intent to %ill his mother. It was held that criminal
intent applies on the strangulation of the vital
part of the body. Criminal intent is on the basis
of the act, not on the basis if what the offender
says.
*oo% into motive to determine the proper crime
which can be imputed to the accused. If a judge
was %illed, determine if the %illing has any
relation to the official functions of the judge in
which case the crime would be direct assault
complexed with murderHhomicide, not the other
way around. If it has no relation, the crime is
simply homicide or murder.
)mission is the inaction, the failure to perform a
positive duty which he is bound to do. "here
must be a law re8uiring the doing or performing
of an act.
<istinction between negligence and imprudence
1/2 In negligence, there is deficiency of
action7
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132 in imprudence, there is deficiency of
perception.
Mens rea
"he technical term mens rea is sometimes
referred to in common parlance as the
gravamen of the offense. "o a layman, that is
what you call the @bullseyeA of the crime. "his
term is used synonymously with criminal or
deliberate intent, but that is not exactly correct.
:ens rea of the crime depends upon the
elements of the crime. Mou can only detect the
mens rea of a crime by %nowing the particular
crime committed. $ithout reference to a
particular crime, this term is meaningless. &or
example, in theft, the mens rea is the ta%ing of
the property of another with intent to gain. In
falsification, the mens rea is the effecting of the
forgery with intent to pervert the truth. It is not
merely writing something that is not true7 the
intent to pervert the truth must follow the
performance of the act.
In criminal law, we sometimes have to consider
the crime on the basis of intent. &or example,
attempted or frustrated homicide is
distinguished from physical injuries only by the
intent to %ill. ttempted rape is distinguished
from acts of lasciviousness by the intent to have
sexual intercourse. In robbery, the mens rea is
the ta%ing of the property of another coupled
with the employment of intimidation or violence
upon persons or things7 remove the employment
of force or intimidation and it is not robbery
anymore.
Mista6e of fact
$hen an offender acted out of a
misapprehension of fact, it cannot be said that
he acted with criminal intent. "hus, in criminal
law, there is a @mista%e of factA. $hen the
offender acted out of a mista%e of fact, criminal
intent is negated, so do not presume that the act
was done with criminal intent. "his is absolutory
if crime involved dolo.
:ista%e of fact would be relevant only when the
felony would have been intentional or through
dolo, but not when the felony is a result of culpa.
$hen the felony is a product of culpa, do not
discuss mista%e of fact. $hen the felonious act
is the product of dolo and the accused claimed
to have acted out of mista%e of fact, there
should be no culpa in determining the real facts,
otherwise, he is still criminally liable, although
he acted out of a mista%e of fact. :ista%e of fact
is only a defense in intentional felony but never
in culpable felony.

Real concept of culpa
.nder rticle -, it is clear that culpa is just a
modality by which a felony may be committed.
felony may be committed or incurred through
dolo or culpa. Culpa is just a means by which a
felony may result.
In rticle -,=, you have criminal negligence as
an omission which the article definitely or
specifically penali'ed. "he concept of criminal
negligence is the inexcusable lac% of precaution
on the part of the person performing or failing to
perform an act. If the danger impending from
that situation is clearly manifest, you have a
case of rec%less imprudence. 5ut if the danger
that would result from such imprudence is not
clear, not manifest nor immediate you have only
a case of simple negligence. 5ecause of rticle
-,=, one might thin% that criminal negligence is
the one being punished. "hat is why a 8uestion
is created that criminal negligence is the crime
in itself.
In #eople v. (aller, it was stated indirectly that
that criminal negligence or culpa is just a mode
of incurring criminal liability. In this case, the
accused was charged with malicious mischief.
:alicious mischief is an intentional negligence
under rticle -3C of the +evised (enal Code.
"he provision expressly re8uires that there be a
deliberate damaging of property of another,
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which does not constitute destructive arson.
Mou do not have malicious mischief through
simple negligence or rec%less imprudence
because it re8uires deliberateness. &aller was
charged with malicious mischief, but was
convicted of damage to property through
rec%less imprudence. "he 0upreme Court
pointed out that although the allegation in the
information charged the accused with an
intentional felony, yet the words feloniously and
unlawfully, which are standard languages in an
information, covers not only dolo but also culpa
because culpa is just a mode of committing a
felony.
In )ue*on v. !ustice o+ t,e #eace, ;ustice
;.5.*. +eyes dissented and claimed that
criminal negligence is a 8uasi#offense, and the
correct designation should not be homicide
through rec%less imprudence, but rec%less
imprudence resulting in homicide. "he view of
;ustice +eyes is sound, but the problem is
rticle -, which states that culpa is just a mode
by which a felony may result.
uestion ! Answer
"s culpa or criminal negligence a crime(
&irst, point out rticle -. .nder rticle -,
it is beyond 8uestion that culpa or criminal
negligence is just a mode by which a felony may
arise7 a felony may be committed or incurred
through dolo or culpa.
However, ;ustice ;.5.*. +eyes pointed
out that criminal negligence is a 8uasi4offense.
His reason is that if criminal negligence is not a
8uasi#offense, and only a modality, then it would
have been absorbed in the commission of the
felony and there would be no need for rticle
-,= as a separate article for criminal
negligence. "herefore, criminal negligence,
according to him, is not just a modality7 it is a
crime by itself, but only a 8uasi#offense.
However, in $amson v. CA, where a person
who has been charged with falsification as an
intentional felony, was found guilty of
falsification through simple negligence. "his
means that means that culpa or criminal
negligence is just a modality of committing a
crime.
In some decisions on a complex crime resulting
from criminal negligence, the 0upreme Court
pointed out that when crimes result from
criminal negligence, they should not be made
the subject of a different information. &or
instance, the offender was charged with simple
negligence resulting in slight physical injuries,
and another charge for simple negligence
resulting in damage to property. "he slight
physical injuries which are the result of criminal
negligence are under the jurisdiction of the
inferior court. 5ut damage to property, if the
damage is more than (3,FFF.FF, would be
under the jurisdiction of the +egional "rial Court
because the imposable fine ranges up to three
times the value of the damage.
In #eople v. Aneles, the prosecution filed an
information against the accused in an inferior
court for slight physical injuries through rec%less
imprudence and filed also damage to property in
the +egional "rial Court. "he accused pleaded
guilty to the charge of slight physical injuries.
$hen he was arraigned before the +egional
"rial Court, he invo%ed double jeopardy. He was
claiming that he could not be prosecuted again
for the same criminal negligence. "he 0upreme
Court ruled that here is no double jeopardy
because the crimes are two different crimes.
0light physical injuries and damage to property
are two different crimes.
In so ruling that there is no double jeopardy, the
0upreme Court did not loo% into the criminal
negligence. "he 0upreme Court loo%ed into the
physical injuries and the damage to property as
the felonies and not criminal negligence.
In several cases that followed, the 0upreme
Court ruled that where several conse8uences
result from rec%less imprudence or criminal
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negligence, the accused should be charged only
in the +egional "rial Court although the rec%less
imprudence may result in slight physical injuries.
"he 0upreme Court argued that since there was
only one criminal negligence, it would be an
error to split the same by prosecuting the
accused in one court and prosecuting him again
in another for the same criminal negligence.
"his is tantamount to splitting a cause of action
in a civil case. &or orderly procedure, the
information should only be one. "his however,
also creates some doubts. s you %now, when
the information charges the accused for more
than the crime, the information is defective
unless the crime charged is a complex one or a
special complex crime.
CRIMINAL LIA*ILITY
0ince in rticle -, a felony is an act or omission
punishable by law, particularly the +evised
(enal Code, it follows that whoever commits a
felony incurs criminal liability. In paragraph / of
rticle 9, the law uses the word @felonyA, that
whoever commits a felony incurs criminal
liability. felony may arise not only when it is
intended, but also when it is the product of
criminal negligence. $hat ma%es paragraph /
of rticle 9 confusing is the addition of the
8ualifier @although the wrongful act be different
from what he intended.A
uestions ! Answers
1. + man thought of committing
suicide and went on top of a tall building. >e
$umped% landing on somebody else% who died
instantly. "s he criminally liable(
Mes. felony may result not only from
dolo but also from culpa. If that fellow who was
committing suicide acted negligently, he will be
liable for criminal negligence resulting in the
death of another.
2. + had been courting G for the last
five years. G told +% A&et us $ust be friends. "
want a lawyer for a husband and " have already
found somebody whom " agreed to marry.
+nyway there are still a lot of ladies around7 you
will still have your chance with another lady.F +%
trying to show that he is a sport% went down from
the house of G% went inside his car% and stepped
on the accelerator to the limit% closed his eyes%
started the vehicle. he vehicle #oomed% running
over all the pedestrians on the street. +t the end%
the car stopped at the fence. >e was taken to
the hospital% and he survived. )an he be held
criminally liable for all those innocent people that
he ran over% claiming that he was committing
suicide(
He will be criminally liable, not for an
intentional felony, but for culpable felony. "his is
so because, in paragraph / of rticle 9, the term
used is @felonyA, and that term covers both dolo
and culpa.
3. + pregnant woman thought of
killing herself by climbing up a tall building and
$umped down below. "nstead of falling in the
pavement% she fell on the owner of the building.
+n abortion resulted. "s she liable for an
unintentional abortion( "f not% what possible
crime may be committed(
"he relevant matter is whether the
pregnant woman could commit unintentional
abortion upon herself. "he answer is no
because the way the law defines unintentional
abortion, it re8uires physical violence coming
from a third party. $hen a pregnant woman
does an act that would bring about abortion, it is
always intentional. .nintentional abortion can
only result when a third person employs
physical violence upon a pregnant woman
resulting to an unintended abortion.
In one case, a pregnant woman and man
8uarreled. "he man could no longer bear the
shouting of the woman, so he got his firearm
and po%ed it into the mouth of the woman. "he
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woman became hysterical, so she ran as fast as
she could, which resulted in an abortion. "he
man was prosecuted for unintentional abortion.
It was held that an unintentional abortion was
not committed. However, drawing a weapon in
the height of a 8uarrel is a crime of other light
threats under rticle 3?=. n unintentional
abortion can only be committed out of physical
violence, not from mere threat.
$ro4imate cause
+rticle 4% paragraph 1 presupposes that the act
done is the proximate cause of the resulting
felony. "t must be the direct% natural% and logical
conse*uence of the felonious act.
(roximate cause is that cause which sets into
motion other causes and which unbro%en by any
efficient supervening cause produces a felony
without which such felony could not have
resulted. He who is the cause of the cause is
the evil of the cause. s a general rule, the
offender is criminally liable for all the
conse8uences of his felonious act, although not
intended, if the felonious act is the proximate
cause of the felony or resulting felony.
proximate cause is not necessarily the
immediate cause. "his may be a cause which is
far and remote from the conse8uence which
sets into motion other causes which resulted in
the felony.
IllustrationsD
, 5, C, < and E were driving their vehicles
along )rtigas veue. Os car was ahead,
followed by those of 5, C, <, and E. $hen Os
car reached the intersection of E<0 and
)rtigas venue, the traffic light turned red so
immediately stepped on his brea%, followed by
5, C, <. However, E was not aware that the
traffic light had turned to red, so he bumped the
car of <, then < hit the car of C, then C hit the
car of 5, then, finally, 5 hit the car of . In this
case, the immediate cause to the damage of the
car of is the car of 5, but that is not the
proximate cause. "he proximate cause is the
car of E because it was the car of E which sets
into motion the cars to bump into each other.
In one case, and 5, who are brothers#in#law,
had a 8uarrel. t the height of their 8uarrel,
shot 5 with an airgun. 5 was hit at the stomach,
which bled profusely. $hen saw this, he put 5
on the bed and told him not to leave the bed
because he will call a doctor. $hile was away,
5 rose from the bed, went into the %itchen and
got a %itchen %nife and cut his throat. "he doctor
arrived and said that the wound in the stomach
is only superficial7 only that it is a bleeder, but
the doctor could no longer save him because
5’s throat was already cut. Eventually, 5 died.
was prosecuted for manslaughter. "he
0upreme Court rationali'ed that what made 5
cut his throat, in the absence of evidence that
he wanted to commit suicide, is the belief that
sooner or later, he would die out of the wound
inflicted by . 5ecause of that belief, he decided
to shorten the agony by cutting his throat. "hat
belief would not be engendered in his mind were
it not because of the profuse bleeding from his
wound. !ow, that profusely bleeding would not
have been there, were it not for the wound
inflicted by . s a result, was convicted for
manslaughter.
In criminal law, as long as the act of the accused
contributed to the death of the victim, even if the
victim is about to die, he will still be liable for the
felonious act of putting to death that victim. In
one decision, the 0upreme Court held that the
most precious moment in a man’s life is that of
losing seconds when he is about to die. 0o
when you robbed him of that, you should be
liable for his death. Even if a person is already
dying, if one suffocates him to end up his agony,
one will be liable for murder, when you put him
to death, in a situation where he is utterly
defenseless.
In %$ v. -alde*, the deceased is a member of
the crew of a vessel. ccused is in charge of
the crewmembers engaged in the loading of
cargo in the vessel. 5ecause the offended party
was slow in his wor%, the accused shouted at
him. "he offended party replied that they would
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be better if he would not insult them. "he
accused resented this, and rising in rage, he
moved towards the victim, with a big %nife in
hand threatening to %ill him. "he victim believing
himself to be in immediate peril, threw himself
into the water. "he victim died of drowning. "he
accused was prosecuted for homicide. His
contention that his liability should be only for
grave threats since he did not even stab the
victim, that the victim died of drowning, and this
can be considered as a supervening cause. It
was held that the deceased, in throwing himself
into the river, acted solely in obedience to the
instinct of self#preservation, and was in no
sense legally responsible for his own death. s
to him, it was but the exercise of a choice
between two evils, and any reasonable person
under the same circumstance might have done
the same. "he accused must, therefore, be
considered as the author of the death of the
victim.
"his case illustrates that proximate cause does
not re8uire that the offender needs to actually
touch the body of the offended party. It is
enough that the offender generated in the mind
of the offended party the belief that made him
ris% himself.
If a person shouted fire, and because of that a
moviegoer jumped into the fire escape and died,
the person who shouted fire when there is no
fire is criminally liable for the death of that
person.
In a case where a wife had to go out to the cold
to escape a brutal husband and because of that
she was exposed to the element and caught
pneumonia, the husband was made criminally
liable for the death of the wife.
Even though the attending physician may have
been negligent and the negligence brought
about the death of the offending party 4 in other
words, if the treatment was not negligent, the
offended party would have survived 4 is no
defense at all, because without the wound
inflicted by the offender, there would have been
no occasion for a medical treatment.
Even if the wound was called slight but because
of the careless treatment, it was aggravated, the
offender is liable for the death of the victim not
only of the slight physical injuries. +eason 4
without the injury being inflicted, there would
have been no need for any medical treatment.
"hat the medical treatment proved to be
careless or negligent, is not enough to relieve
the offender of the liability for the inflicting
injuries.
$hen a person inflicted wound upon another,
and his victim upon coming home got some
leaves, pounded them and put lime there, and
applying this to the wound, developed loc%ed
jaw and eventually he died, it was held that the
one who inflicted the wound is liable for his
death.
In another instance, during a 8uarrel, the victim
was wounded. "he wound was superficial, but
just the same the doctor put inside some
pac%ing. $hen the victim went home, he could
not stand the pain, so he pulled out the pac%ing.
"hat resulted into profuse bleeding and he died
because of loss of blood. "he offender who
caused the wound, although the wound caused
was only slight, was held answerable for the
death of the victim, even if the victim would not
have died were it not for the fact that he pulled
out that pac%ing. "he principle is that without
the wound, the act of the physician or the act of
the offended party would not have anything to
do with the wound, and since the wound was
inflicted by the offender, whatever happens on
that wound, he should be made punishable for
that.
In %rbano v. .AC, and 5 had a 8uarrel and
started hac%ing each other. 5 was wounded at
the bac%. Cooler heads intervened and they
were separated. 0omehow, their differences
were patched up. agreed to shoulder all the
expenses for the treatment of the wound of 5,
and to pay him also whatever lost of income 5
may have failed to receive. 5, on the other
hand, signed a forgiveness in favor of and on
that condition, he withdrew the complaint that he
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filed against . fter so many wee%s of
treatment in a clinic, the doctor pronounced the
wound already healed. "hereafter, 5 went bac%
to his farm. "wo months later, 5 came home
and he was chilling. 5efore midnight, he died
out of tetanus poisoning. "he heirs of 5 filed a
case of homicide against . "he 0upreme
Court held that is not liable. It too% into
account the incubation period of tetanus toxic.
:edical evidence were presented that tetanus
toxic is good only for two wee%s. "hat if, indeed,
the victim had incurred tetanus poisoning out of
the wound inflicted by , he would not have
lasted two months. $hat brought about tetanus
to infect the body of 5 was his wor%ing in his
farm using his bare hands. 5ecause of this, the
0upreme Court said that the act of 5 of wor%ing
in his farm where the soil is filthy, using his own
hands, is an efficient supervening cause which
relieves of any liability for the death of 5. , if
at all, is only liable for physical injuries inflicted
upon 5.
If you are confronted with this facts of the
.rbano case, where the offended party died
because of tetanus poisoning, reason out
according to that reasoning laid down by the
0upreme Court, meaning to say, the incubation
period of the tetanus poisoning was considered.
0ince tetanus toxic would affect the victim for no
longer than two wee%s,, the fact that the victim
died two months later shows that it is no longer
tetanus brought about by the act of the accused.
"he tetanus was gathered by his wor%ing in the
farm and that is already an efficient intervening
cause.
"he one who caused the proximate cause is the
one liable. "he one who caused the immediate
cause is also liable, but merely contributory or
sometimes totally not liable.
Wrongful act #one )e #ifferent from what
was inten#e#
$hat ma%es the first paragraph of rticle 9
confusing is the 8ualification @although the
wrongful act done be different from what was
intendedA. "here are three situations
contemplated under paragraph / of rticle 9D
1/2 berratio ictus or mista%e in the blow7
132 Error in personae or mista%e in identity7
and
1-2 (raeter intentionem or where the
conse8uence exceeded the intention.
A)erration ictus
In aberratio ictus, a person directed the blow at
an intended victim, but because of poor aim,
that blow landed on somebody else. In
aberratio ictus, the intended victim as well as
the actual victim are both at the scene of the
crime.
<istinguish this from error in personae, where
the victim actually received the blow, but he was
mista%en for another who was not at the scene
of the crime. "he distinction is important
because the legal effects are not the same.
In aberratio ictus, the offender delivers the blow
upon the intended victim, but because of poor
aim the blow landed on somebody else. Mou
have a complex crime, unless the resulting
conse8uence is not a grave or less grave felony.
Mou have a single act as against the intended
victim and also giving rise to another felony as
against the actual victim. "o be more specific,
let us ta%e for example and 5. and 5 are
enemies. s soon as saw 5 at a distance,
shot at 5. However, because of poor aim, it was
not 5 who was hit but C. Mou can readily see
that there is only one single act 4 the act of firing
at 5. In so far as 5 is concerned, the crime at
least is attempted homicide or attempted
murder, as the case may be, if there is any
8ualifying circumstance. s far as the third
party C is concerned, if C were %illed, crime is
homicide. If C was only wounded, the crime is
only physical injuries. Mou cannot have
attempted or frustrated homicide or murder as
far as C is concerned, because as far as C is
concern, there is no intent to %ill. s far as that
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other victim is concerned, only physical injuries
4 serious or less serious or slight.
If the resulting physical injuries were only slight,
then you cannot complex7 you will have one
prosecution for the attempted homicide or
murder, and another prosecution for slight
physical injuries for the innocent party. 5ut if the
innocent party was seriously injured or less
seriously injured, then you have another grave
or less grave felony resulting from the same act
which gave rise to attempted homicide or
murder against 57 hence, a complex crime.
In other words, aberratio ictus, generally gives
rise to a complex crime. "his being so, the
penalty for the more serious crime is imposed in
the maximum period. "his is the legal effect.
"he only time when a complex crime may not
result in aberratio ictus is when one of the
resulting felonies is a light felony.
uestion ! Answer
he facts were one of aberratio ictus% but
the facts stated that the offender aimed
carelessly in firing the shot. "s the felony the
result of dolo or culpa( -hat crime was
committed(
ll three instances under paragraph /,
rticle 9 are the product of dolo. In aberratio
ictus, error in personae and praeter intentionem,
never thin% of these as the product of culpa.
"hey are always the result of an intended felony,
and, henc,e dolo. Mou cannot have these
situations out of criminal negligence. "he crime
committed is attempted homicide or attempted
murder, not homicide through rec%less
imprudence.
Error in personae
In error in personae, the intended victim was not
at the scene of the crime. It was the actual
victim upon whom the blow was directed, but he
was not really the intended victim. "here was
really a mista%e in identity.
"his is very important because rticle 9> applies
only in a case of error in personae and not in a
case of abberatio ictus.
In rticle 9>, when the crime intended is more
serious than the crime actually committed or
vice#versa, whichever crime carries the lesser
penalty, that penalty will be the one imposed.
5ut it will be imposed in the maximum period.
&or instance, the offender intended to commit
homicide, but what was actually committed with
parricide because the person he %illed by
mista%e was somebody related to him within the
degree of relationship in parricide. In such a
case, the offender will be charged with parricide,
but the penalty that would be imposed will be
that of homicide. "his is because under rticle
9>, the penalty for the lesser crime will be the
one imposed, whatever crime the offender is
prosecuted under. In any event, the offender is
prosecuted for the crime committed not for the
crime intended.
IllustrationsD
thought of %illing 5. He positioned himself at
one corner where 5 would usually pass. $hen
a figure resembling 5 was approaching, hid
and when that figure was near him, he suddenly
hit him with a piece of wood on the nape, %illing
him. 5ut it turned out that it was his own father.
"he crime committed is parricide, although what
was intended was homicide. rticle 9>,
therefore, will apply because out of a mista%e in
identity, a crime was committed different from
that which was intended.
In another instance, thought of %illing 5.
Instead of 5, C passed. thought that he was
5, so he hit C on the nec%, %illing the latter. ;ust
the same, the crime intended to be committed is
homicide and what was committed is actually
homicide, rticle 9> does not apply. Here, error
in personae is of no effect.
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How does error in personae affect criminal
liability of the offenderL
Error in personae is mitigating if the crime
committed is different from that which was
intended. If the crime committed is the same as
that which was intended, error in personae does
not affect the criminal liability of the offender.
In mista%e of identity, if the crime committed was
the same as the crime intended, but on a
different victim, error in persona does not affect
the criminal liability of the offender. 5ut if the
crime committed was different from the crime
intended, rticle 9> will apply and the penalty for
the lesser crime will be applied. In a way,
mista%e in identity is a mitigating circumstance
where rticle 9> applies. $here the crime
intended is more serious than the crime
committed, the error in persona is not a
mitigating circumstance
$raeter intentionem
In #eople v. /acoo, 03 #,il 021, two persons
8uarreled. "hey had fist blows. "he other
started to run away and Gacogo went after him,
struc% him with a fist blow at the bac% of the
head. 5ecause the victim was running, he lost
balance, he fell on the pavement and his head
struc% the cement pavement. He suffered
cerebral hemorrhage. lthough Gacogo
claimed that he had no intention of %illing the
victim, his claim is useless. Intent to %ill is only
relevant when the victim did not die. "his is so
because the purpose of intent to %ill is to
differentiate the crime of physical injuries from
the crime of attempted homicide or attempted
murder or frustrated homicide or frustrated
murder. 5ut once the victim is dead, you do not
tal% of intent to %ill anymore. "he best evidence
of intent to %ill is the fact that victim was %illed.
lthough Gacogo was convicted for homicide for
the death of the person, he was given the
benefit of paragraph - of rticle/-, that is, G that
the offender did not intend to commit so grave a
wrong as that committedA.
"his is the conse8uence of praeter intentionem.
In short, praeter intentionem is mitigating,
particularly covered by paragraph - of rticle /-.
In order however, that the situation may 8ualify
as praeter intentionem, there must be a notable
disparity between the means employed and the
resulting felony. If there is no disparity between
the means employed by the offender and the
resulting felony, this circumstance cannot be
availed of. It cannot be a case of praeter
intentionem because the intention of a person is
determined from the means resorted to by him
in committing the crime.
IllustrationsD
stabbed his friend when they had a drin%ing
spree. $hile they were drin%ing, they had some
argument about a bas%etball game and they
could not agree, so he stabbed him eleven
times. His defense is that he had no intention of
%illing his friend. He did not intend to commit so
grave a wrong as that committed. It was held
that the fact that // wounds were inflicted on Os
friend is hardly compatible with the idea that he
did not intend to commit so grave a wrong that
committed.
In another instance, the accused was a
homosexual. "he victim ridiculed or humiliated
him while he was going to the restroom. He
was so irritated that he just stabbed the victim at
the nec% with a lady’s comb with a pointed
handle, %illing the victim. His defense was that
he did not intend to %ill him. He did not intend to
commit so grave a wrong as that of %illing him.
"hat contention was rejected, because the
instrument used was pointed. "he part of the
body wherein it was directed was the nec%
which is a vital part of the body. In praeter
intentionem, it is mitigating only if there is a
notable or notorious disparity between the
means employed and the resulting felony. In
criminal law, intent of the offender is determined
on the basis employed by him and the manner
in which he committed the crime. Intention of
the offender is not what is in his mind7 it is
disclosed in the manner in which he committed
the crime.
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In still another case, the accused entered the
store of a Chinese couple, to commit robbery.
"hey hogtied the Chinaman and his wife.
5ecause the wife was so tal%ative, one of the
offenders got a pan de sal and put it in her
mouth. 5ut because the woman was trying to
wriggle from the bondage, the pan de sal
slipped through her throat. 0he died because of
suffocation. "he offender were convicted for
robbery with homicide because there was a
resulting death, although their intention was only
to rob. "hey were given the benefit of
paragraph - of rticle /-, @that they did not
intend to commit so grave a wrong as that
committedA. "here was really no intention to
bring about the %illing, because it was the pan
de sal they put into the mouth. Had it been a
piece of rag, it would be different. In that case,
the 0upreme Court gave the offenders the
benefit of praeter intentionem as a mitigating
circumstance. "he means employed is not
capable of producing death if only the woman
chewed the pan de sal.
+ man raped a young girl. he young girl was
shouting so the man placed his hand on the
mouth and nose of the victim. >e found out later
that the victim was dead already7 she died of
suffocation. he offender begged that he had
no intention of killing the girl and that his only
intention was to prevent her from shouting. he
2upreme )ourt re$ected the plea saying that one
can always expect that a person who is
suffocated may eventually die. 2o the offender
was prosecuted for the serious crime of rape
with homicide and he was not given the benefit
of paragraph 3% +rticle 13.
<ifferentiating this first case with the case of the
Chinamana nd his wife, it would seem that the
difference lies in the means employed by the
offender.
In praeter intentionem, it is essential that there
is a notable disparity between the means
employed or the act of the offender and the
felony which resulted. "his means that the
resulting felony cannot be foreseen from the
acts of the offender. If the resulting felony can
be foreseen or anticipated from the means
employed, the circumstance of praeter
intentionem does not apply.
&or example, if gave 5 a %arate blow in the
throat, there is no praeter intentionem because
the blow to the throat can result in death.
0o also, if tried to intimidate 5 by po%ing a gun
at the latter’s bac%, and 5 died of a cardiac
arrest, will be prosecuted for homicide but will
be given the mitigating circumstance praeter
intentionem.
Impossi)le crime
+n impossible crime is an act which would be an
offense against person or property were it not for
the inherent impossibility of its accomplishment
or on account of the employment of inade*uate
or ineffectual means.
uestion ! Answer
1. +ccused was a houseboy in a
house where only a spinster resides. "t is
customary for the spinster to sleep nude
because her room was warm. "t was also the
habit of the houseboy that whenever she enters
her room% the houseboy would follow and peek
into the keyhole. 8inally% when the houseboy
could no longer resist the urge% he climbed into
the ceiling% went inside the room of his master%
placed himself on top of her and abused her% not
knowing that she was already dead five minutes
earlier. "s an impossible crime committed(
Mes. 5efore, the act performed by the
offender could not have been a crime against
person or property. "he act performed would
have been constituted a crime against chastity.
n impossible crime is true only if the act done
by the offender constitutes a crime against
person or property. However, with the new rape
law amending the +evised (enal Code and
classifying rape as a crime against persons, it is
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now possible that an impossible crime was
committed. !ote, however, that the crime might
also fall under the +evised dministrative Code
4 desecrating the dead.
2. + was driving his car around
'oxas ,oulevard when a person hitched a ride.
,ecause this person was ex*uisitely dressed% +
readily welcomed the fellow inside his car and
he continued driving. -hen he reached a motel%
+ suddenly swerved his car inside. + started
kissing his passenger% but he found out that his
passenger was not a woman but a man% and so
he pushed him out of the car% and gave him fist
blows. "s an impossible crime committed( "f
not% is there any crime committed at all(
It cannot be an impossible crime,
because the act would have been a crime
against chastity. "he crime is physical injuries
or acts of lasciviousness, if this was done
against the will of the passenger. "here are two
ways of committing acts of lasciviousness.
.nder rticle --,, where the acts of
lasciviousness were committed under
circumstances of rape, meaning to say, there is
employment of violence or intimidation or the
victim is deprived of reason. Even if the victim
is a man, the crime of acts of lasciviousness is
committed. "his is a crime that is not limited to
a victim who is a woman. cts of lasciviousness
re8uire a victim to be a woman only when it is
committed under circumstances of seduction. If
it is committed under the circumstances of rape,
the victim may be a man or a woman. "he
essence of an impossible crime is the inherent
impossibility of accomplishing the crime or the
inherent impossibility of the means employed to
bring about the crime. $hen we say inherent
impossibility, this means that under any and all
circumstances, the crime could not have
materiali'ed. If the crime could have
materiali'ed under a different set of facts,
employing the same mean or the same act, it is
not an impossible crime7 it would be an
attempted felony.
.nder rticle 9, paragraph 3, impossible crime
is true only when the crime committed would
have been against person or against property. It
is, therefore, important to %now what are the
crimes under "itle 6III, against persons and
those against property under "itle N. n
impossible crime is true only to any of those
crimes.
3. + entered a department store at
about midnight% when it was already closed. >e
went directly to the room where the safe or vault
was being kept. >e succeeded in opening the
safe% but the safe was empty. "s an impossible
crime committed( "f not% what crime is possibly
committed(
"his is not an impossible crime. "hat is
only true if there is nothing more to steal. 5ut in
a department store, where there is plenty to
steal, not only the money inside the vault or
safe. "he fact that the vault had turned out to
be empty is not really inherently impossible to
commit the crime of robbery. "here are other
things that he could ta%e. "he crime committed
therefore is attempted robbery, assuming that
he did not lay his hands on any other article.
"his could not be trespass to dwelling because
there are other things that can be stolen.
4. + and , were lovers. , was
willing to marry + except that + is already
married. + thought of killing his wife. >e
prepared her breakfast every morning% and
every morning% he placed a little dose of arsenic
poison into the breakfast of the wife. he wife
consumed all the food prepared by her husband
including the poison but nothing happened to the
wife. ,ecause of the volume of the household
chores that the wife had to attend to daily% she
developed a physical condition that rendered her
so strong and resistance to any kind of
poisoning% so the amount of poison applied to
her breakfast has no effect to her. "s there an
impossible crime(
!o impossible crime is committed
because the fact itself stated that what
prevented the poison from ta%ing effect is the
physical condition of the woman. 0o it implies
that if the woman was not of such physical
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condition, the poison would have ta%en effect.
Hence, it is not inherently impossible to reali'e
the %illing. "he crime committed is frustrated
parricide.
If it were a case of poisoning , an
impossible crime would be constituted if a
person who was thin%ing that it was a poison
that he was putting into the food of the intended
victim but actually it was vetsin or sugar or soda.
.nder any and all circumstances, the crime
could not have been reali'ed. 5ut if due to the
8uantity of vetsin or sugar or soda, the intended
victim developed *5: and was hospitali'ed,
then it would not be a case of impossible crime
anymore. It would be a case of physical
injuries, if the act done does not amount to
some other crime under the +evised (enal
Code.
<o not confuse an impossible crime with the
attempted or frustrated stage.
:. 2cott and )harles are roommate
in a boarding house. 4veryday% 2cott leaves for
work but before leaving he would lock the food
cabinet where he kept his food. )harles
resented this. 1ne day% he got an electric cord
tied the one end to the door knob and plugged
the other end to an electric outlet. he idea was
that% when 2cott comes home to open the door
knob% he would be electrocuted. Hnknown to
)harles% 2cott is working in an electronic shop
where he received a daily dosage of electric
shock. -hen 2cott opened the doorknob%
nothing happened to him. >e was $ust surprised
to find out that there was an electric cord
plugged to the outlet and the other hand to the
door knob. -hether an impossible crime was
committed or not(
It is not an impossible crime. "he means
employed is not inherently impossible to bring
about the conse8uence of his felonious act.
$hat prevented the consummation of the crime
was because of some cause independent of the
will of the perpetrator.
C. + and , are enemies. +% upon
seeing ,% got the revolver of his father% shot ,%
but the revolver did not discharge because the
bullets were old% none of them discharged. -as
an impossible crime committed(
!o. It was purely accidental that the
firearm did not discharge because the bullets
were old. If they were new, it would have fired.
"hat is a cause other than the spontaneous
desistance of the offender, and therefore, an
attempted homicide.
5ut if let us say, when he started s8uee'ing the
trigger, he did not reali'e that the firearm was
empty. "here was no bullet at all. "here is an
impossible crime, because under any and all
circumstances, an unloaded firearm will never
fire.
$henever you are confronted with a problem
where the facts suggest that an impossible
crime was committed, be careful about the
8uestion as%ed. If the 8uestion as%ed isD @Is an
impossible crime committedLA, then you judge
that 8uestion on the basis of the facts. If really
the facts constitute an impossible crime, then
you suggest than an impossible crime is
committed, then you state the reason for the
inherent impossibility.
If the 8uestion as%ed is @Is he liable for an
impossible crimeLA, this is a catching 8uestion.
Even though the facts constitute an impossible
crime, if the act done by the offender constitutes
some other crimes under the +evised (enal
Code, he will not be liable for an impossible
crime. He will be prosecuted for the crime
constituted so far by the act done by him. "he
reason is an offender is punished for an
impossible crime just to teach him a lesson
because of his criminal perversity. lthough
objectively, no crime is committed, but
subjectively, he is a criminal. "hat purpose of
the law will also be served if he is prosecuted for
some other crime constituted by his acts which
are also punishable under the +(C.
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I. + and , are neighbors. hey are
$ealous of each other?s social status. + thought
of killing , so + climbed the house of , through
the window and stabbed , on the heart% not
knowing that , died a few minutes ago of
bangungot. "s + liable for an impossible crime(
!o. shall be liable for 8ualified
trespass to dwelling. lthough the act done by
against 5 constitutes an impossible crime, it is
the principle of criminal law that the offender
shall be punished for an impossible crime only
when his act cannot be punished under some
other provisions in the +evised (enal Code.
In other words, this idea of an impossible crime
is a one of last resort, just to teach the offender
a lesson because of his criminal perversity. If
he could be taught of the same lesson by
charging him with some other crime constituted
by his act, then that will be the proper way. If
you want to play safe, you state there that
although an impossible crime is constituted, yet
it is a principle of criminal law that he will only be
penali'ed for an impossible crime if he cannot
be punished under some other provision of the
+evised (enal Code.
If the 8uestion is @Is an impossible crime is
committedLA, the answer is yes, because on the
basis of the facts stated, an impossible crime is
committed. 5ut to play safe, add another
paragraphD However, the offender will not be
prosecuted for an impossible crime but for
PPPPP Jstate the crimeK. 5ecause it is a
principle in criminal law that the offender can
only be prosecuted for an impossible crime if his
acts do not constitute some other crimes
punishable under the +evised (enal Code. n
impossible crime is a crime of last resort.
Mo#ifie# concept of impossi)le crime7
In a way, the concept of impossible crime has
been modified by the decision of the 0upreme
Court in the case of .ntod v. CA, et al., 210
$C2A 02. In this case, four culprits, all armed
with firearms and with intent to %ill, went to the
intended victim’s house and after having
pinpointed the latter’s bedroom, all four fired at
and riddled said room with bullets, thin%ing that
the intended victim was already there as it was
about /FDFF in the evening. It so happened that
the intended victim did not come home on the
evening and so was not in her bedroom at that
time. Eventually the culprits were prosecuted
and convicted by the trial court for attempted
murder. "he Court of ppeals affirmed the
judgment but the 0upreme Court modified the
same and held the petitioner liable only for the
so#called impossible crime. s a result,
petitioner#accused was sentenced to
imprisonment of only six months of arresto
mayor for the felonious act he committed with
intent to %illD this despite the destruction done to
the intended victim’s house. 0omehow, the
decision depreciated the seriousness of the act
committed, considering the lawlessness by
which the culprits carried out the intended crime,
and so some members of the bench and bar
spo%e out against the soundness of the ruling.
0ome as%ed 8uestionsD $as it really the
impossibility of accomplishing the %illing that
brought about its non#accomplishmentL $as it
not purely accidental that the intended victim did
not come home that evening and, thus,
un%nown to the culprits, she was not in her
bedroom at the time it was shot and riddled with
bulletsL 0uppose, instead of using firearms, the
culprits set fire on the intended victim’s house,
believing she was there when in fact she was
not, would the criminal liability be for an
impossible crimeL
.ntil the Intod case, the prevailing attitude was
that the provision of the +evised (enal Code on
impossible crime would only apply when the
wrongful act, which would have constituted a
crime against persons or property, could not and
did not constitute another felony. )therwise, if
such act constituted any other felony although
different from what the offender intended, the
criminal liability should be for such other felony
and not for an impossible crime. "he attitude
was so because rticle 9 of the Code provides
two situations where criminal liability shall be
incurred, to witD
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rt 9. Criminal liability 4
Criminal liability shall be incurredD
/. 5y any person committing
a felony 1delito2 although
the wrongful act be
different from that which
he intended.
3. 5y any person performing
an act which would be an
offense against persons
or property, were it not for
the inherent impossibility
of its accomplishment or
on account of the
employment of
inade8uate or ineffectual
means.
(aragraph / refers to a situation where the
wrongful act done constituted a felony although
it may be different from what he intended.
(aragraph 3 refers to a situation where the
wrongful act done did not constitute any felony,
but because the act would have given rise to a
crime against persons or against property, the
same is penali'ed to repress criminal
tendencies to curtail their fre8uency. 5ecause
criminal liability for impossible crime
presupposes that no felony resulted from the
wrongful act done, the penalty is fixed at arresto
mayor or a fine from (3FF.FF to (=FF.FF,
depending on the @social danger and degree of
criminality shown by the offenderA 1rticle =>2,
regardless of whether the wrongful act was an
impossible crime against persons or against
property.
"here is no logic in applying paragraph 3 of
rticle 9 to a situation governed by paragraph /
of the same rticle, that is, where a felony
resulted. )therwise, a redundancy and duplicity
would be perpetrated.
In the Intod case, the wrongful acts of the
culprits caused destruction to the house of the
intended victim7 this felonious act negates the
idea of an impossible crime. 5ut whether we
agree or not, the 0upreme Court has spo%en,
we have to respect its ruling.
NO CRIME .NLE%% T0ERE I% A LAW
$.NI%0ING IT
$hen a person is charged in court, and the
court finds that there is no law applicable, the
court will ac8uit the accused and the judge will
give his opinion that the said act should be
punished.
rticle = covers two situationsD
1/2 "he court cannot convict the accused
because the acts do not constitute a
crime. "he proper judgment is ac8uittal,
but the court is mandated to report to the
Chief Executive that said act be made
subject of penal legislation and why.
132 $here the court finds the penalty
prescribed for the crime too harsh
considering the conditions surrounding
the commission of he crime, the judge
should impose the law. "he most that he
could do is to recommend to the Chief
Executive to grant executive clemency.
%TAGE% IN T0E COMMI%%ION O/ /ELONY
"he classification of stages of a felony in rticle
, are true only to crimes under the +evised
(enal Code. "his does not apply to crimes
punished under special laws. 5ut even certain
crimes which are punished under the +evised
(enal Code do not admit of these stages.
"he purpose of classifying penalties is to bring
about a proportionate penalty and e8uitable
punishment. "he penalties are graduated
according to their degree of severity. "he
stages may not apply to all %inds of felonies.
"here are felonies which do not admit of
division.
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/ormal crimes
&ormal crimes are crimes which are
consummated in one instance. &or example, in
oral defamation, there is no attempted oral
defamation or frustrated oral defamation7 it is
always in the consummated stage.
0o also, in illegal exaction under rticle 3/- is a
crime committed when a public officer who is
authori'ed to collect taxes, licenses or impose
for the government, shall demand an amount
bigger than or different from what the law
authori'es him to collect. .nder sub#paragraph
a of rticle 3/- on Illegal exaction, the law uses
the word @demandingA. :ere demanding of an
amount different from what the law authori'es
him to collect will already consummate a crime,
whether the taxpayer pays the amount being
demanded or not. (ayment of the amount being
demanded is not essential to the consummation
of the crime.
"he difference between the attempted stage
and the frustrated stage lies on whether the
offender has performed all the acts of execution
for the accomplishment of a felony. *iterally,
under the article, if the offender has performed
all the acts of execution which should produce
the felony as a conse8uence but the felony was
not reali'ed, then the crime is already in the
frustrated stage. If the offender has not yet
performed all the acts of execution 4 there is yet
something to be performed 4 but he was not
able to perform all the acts of execution due to
some cause or accident other than his own
spontaneous desistance, then you have an
attempted felony.
Mou will notice that the felony begins when the
offender performs an overt act. !ot any act will
mar% the beginning of a felony, and therefore, if
the act so far being done does not begin a
felony, criminal liability correspondingly does not
begin. In criminal law, there is such a thing as
preparatory act. "hese acts do not give rise to
criminal liability.
uestion ! Answer
+ and , are husband and wife. + met )
who was willing to marry him% but he is already
married. + thought of eliminating , and to poison
her. 2o% he went to the drugstore and bought
arsenic poison. 1n the way out% he met 9. 9
asked him who was sick in the family% + confided
to 9 that he bought the poison to poison his wife
in order to marry ). +fter that% they parted ways.
9 went directly to the police and reported that +
is going to kill his wife. 2o the policemen went to
+?s house and found + still unwrapping the
arsenic poison. he policemen asked + if he was
planning to poison , and + said yes. !olice
arrested him and charged him with attempted
parricide. "s the charge correct(
!o. )vert act begins when the husband
mixed the poison with the food his wife is going
to ta%e. 5efore this, there is no attempted stage
yet.
n overt act is that act which if allowed to
continue in its natural course would definitely
result into a felony.
In the attempted stage, the definition uses the
word @directlyA. "his is significant. In the
attempted stage, the acts so far performed may
already be a crime or it may be just an
ingredient of another crime. "he word Gdirectly’G
emphasi'es the re8uirement that the attempted
felony is that which is directly lin%ed to the overt
act performed by the offender, not the felony he
has in his mind.
In criminal law, you are not allowed to speculate,
not to imagine what crime is intended, but apply
the provisions of the law of the facts given.
$hen a person starts entering the dwelling of
another, that act is already trespassing. 5ut the
act of entering is an ingredient of robbery with
force upon things. Mou could only hold him liable
for attempted robbery when he has already
completed all acts performed by him directly
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leading to robbery. "he act of entering alone is
not yet indicative of robbery although that may
be what he may have planned to commit. In law,
the attempted stage is only that overt act which
is directly lin%ed to the felony intended to be
committed.
In %$ v. 3ama4a, the accused was arrested
while he was detaching some of the wood
panels of a store. He was already able to detach
two wood panels. "o a layman, the only
conclusion that will come to your mind is that
this fellow started to enter the store to steal
something. He would not be there just to sleep
there. 5ut in criminal law, since the act of
removing the panel indicates only at most the
intention to enter. He can only be prosecuted for
trespass. "he removal of the panelling is just an
attempt to trespass, not an attempt to rob.
lthough, !amaja was prosecuted for attempted
robbery, the 0upreme Court held it is only
attempted trespass because that is the crime
that can be directly lin%ed to his act of removing
the wood panel.
"here are some acts which are ingredients of a
certain crime, but which are, by themselves,
already criminal offenses.
In abduction, your desire may lead to acts of
lasciviousness. In so far the woman being
carried is concerned, she may already be the
victim of lascivious acts. "he crime is not
attempted abduction but acts of lasciviousness.
Mou only hold him liable for an attempt, so far as
could be reasonably lin%ed to the overt act done
by him. <o not go far and imagine what you
should do.
uestion ! Answer
+ awakened one morning with a man
sleeping in his sofa. ,eside the man was a bag
containing picklocks and similar tools. >e found
out that the man entered his sala by cutting the
screen on his window. "f you were to prosecute
this fellow% for what crime are you going to
prosecute him(
"he act done by him of entering through
an opening not intended for the purpose is only
8ualified trespass. Bualified trespass because
he did so by cutting through the screen. "here
was force applied in order to enter. )ther than
that, under rticle -F9 of the +evised (enal
Code, illegal possession of pic%loc%s and similar
tools is a crime. "hus, he can be prosecuted
for two crimesD 1/2 8ualified trespass to
dwelling, and 132 illegal possession of pic%loc%s
and similar tools7 not complex because one is
not necessary means to commit the other.
,esistance
<esistance on the part of the offender negates
criminal liability in the attempted stage.
<esistance is true only in the attempted stage of
the felony. If under the definition of the felony,
the act done is already in the frustrated stage,
no amount of desistance will negate criminal
liability.
"he spontaneous desistance of the offender
negates only the attempted stage but not
necessarily all criminal liability. Even though
there was desistance on the part of the offender,
if the desistance was made when acts done by
him already resulted to a felony, that offender
will still be criminally liable for the felony brought
about his act. $hat is negated is only the
attempted stage, but there may be other felony
constituting his act.
IllustrationsD
fired at 5 and 5 was hit on the shoulder. 5ut
5Os wound was not mortal. $hat then did was
to approach 5, and told 5, @!ow you are dead, I
will %ill you.A 5ut too% pity and %ept the
revolver and left. "he crime committed is
attempted homicide and not physical injuries,
because there was an intention to %ill. "he
desistance was with the second shot and would
not affect the first shot because the first shot
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had already hit 5. "he second attempt has
nothing to do with the first.
In another instance, has a very seductive
neighbor in the person of 5. had always been
loo%ing at 5 and had wanted to possess her but
their status were not the same. )ne evening,
after saw 5 at her house and thought that 5
was already asleep, he entered the house of 5
through the window to abuse her. He, however,
found out that 5 was nude, so he lost interest
and left. Can a be accused of attempted rapeL
!o, because there was desistance, which
prevented the crime from being consummated.
"he attempted stage was erased because the
offender desisted after having commenced the
commission of the felony.
"he attempted felony is erased by desistance
because the offender spontaneously desisted
from pursuing the acts of execution. It does not
mean, however, that there is no more felony
committed. He may be liable for a
consummated felony constituted by his act of
trespassing. $hen entered the house through
the window, which is not intended for entrance,
it is always presumed to be against the will of
the owner. If the offender proceeded to abuse
the woman, but the latter screamed, and went
out of the window again, he could not be
prosecuted for 8ualified trespass. <welling is
ta%en as an aggravating circumstance so he will
be prosecuted for attempted rape aggravated by
dwelling.
In deciding whether a felony is attempted or
frustrated or consummated, there are three
criteria involvedD
1/2 "he manner of committing the crime7
132 "he elements of the crime7 and
1-2 "he nature of the crime itself.
Manner of committing a crime
&or example, let us ta%e the crime of bribery.
Can the crime of frustrated bribery be
committedL !o. 1Incidentally, the common
concept of bribery is that it is the act of one who
corrupts a public officer. ctually, bribery is the
crime of the receiver not the giver. "he crime of
the giver is corruption of public official. 5ribery is
the crime of the public officer who in
consideration of an act having to do with his
official duties would receive something, or
accept any promise or present in consideration
thereof.2
"he confusion arises from the fact that this
crime re8uires two to commit ## the giver and the
receiver. "he law called the crime of the giver as
corruption of public official and the receiver as
bribery. Giving the idea that these are
independent crimes, but actually, they cannot
arise without the other. Hence, if only one side
of the crime is present, only corruption, you
cannot have a consummated corruption without
the corresponding consummated bribery. "here
cannot be a consummated bribery without the
corresponding consummated corruption. If you
have bribery only, it is only possible in the
attempted stage. If you have a corruption only, it
is possible only in the attempted stage.
corruptor gives money to a public officer for the
latter not to prosecute him. "he public officer
received the money but just the same, arrested
him. He received the money to have evidence of
corruption. <o not thin% that because the
corruptor has already delivered the money, he
has already performed all the acts of execution,
and, therefore, the corruption is already beyond
the attempted stage. "hat thin%ing does away
with the concept of the crime that it re8uires two
to commit. "he manner of committing the crime
re8uires the meeting of the minds between the
giver and the receiver.
$hen the giver delivers the money to the
supposed receiver, but there is no meeting of
the minds, the only act done by the giver is an
attempt. It is not possible for him to perform all
the acts of execution because in the first place,
the receiver has no intention of being corrupted.
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0imilarly, when a public officer demands a
consideration by official duty, the corruptor turns
down the demand, there is no bribery.
If the one to whom the demand was made
pretended to give, but he had reported the
matter to higher authorities, the money was
mar%ed and this was delivered to the public
officer. If the public officer was arrested, do not
thin% that because the public officer already had
the money in his possession, the crime is
already frustrated bribery, it is only attempted
bribery. "his is because the supposed corruptor
has no intention to corrupt. In short, there is no
meeting of the minds. )n the other hand, if
there is a meeting of the minds, there is
consummated bribery or consummated
corruption. "his leaves out the frustrated stage
because of the manner of committing the crime.
5ut indirect bribery is always consummated.
"his is because the manner of consummating
the crime does not admit of attempt or
frustration.
Mou will notice that under the +evised (enal
Code, when it ta%es two to commit the crime,
there could hardly be a frustrated stage. &or
instance, the crime of adultery. "here is no
frustrated adultery. )nly attempted or
consummated. "his is because it re8uires the
lin% of two participants. If that lin% is there, the
crime is consummated7 if such lin% is absent,
there is only an attempted adultery. "here is no
middle ground when the lin% is there and when
the lin% is absent.
"here are instances where an intended felony
could already result from the acts of execution
already done. 5ecause of this, there are
felonies where the offender can only be
determined to have performed all the acts of
execution when the resulting felony is already
accomplished. $ithout the resulting felony,
there is no way of determining whether the
offender has already performed all the acts or
not. It is in such felonies that the frustrated
stage does not exist because without the felony
being accomplished, there is no way of stating
that the offender has already performed all the
acts of execution. n example of this is the
crime of rape. "he essence of the crime is
carnal %nowledge. !o matter what the offender
may do to accomplish a penetration, if there was
no penetration yet, it cannot be said that the
offender has performed all the acts of execution.
$e can only say that the offender in rape has
performed all the acts of execution when he has
effected a penetration. )nce there is
penetration already, no matter how slight, the
offense is consummated. &or this reason, rape
admits only of the attempted and consummated
stages, no frustrated stage. "his was the ruling
in the case of #eople v. Orita.
In rape, it re8uires the connection of the
offender and the offended party. !o penetration
at all, there is only an attempted stage. 0lightest
penetration or slightest connection,
consummated. Mou will notice this from the
nature of the crime re8uiring two participants.
"his is also true in the crime of arson. It does
not admit of the frustrated stage. In arson, the
moment any particle of the premises intended to
be burned is blac%ened, that is already an
indication that the premises have begun to burn.
It does not re8uire that the entire premises be
burned to consummate arson. 5ecause of that,
the frustrated stage of arson has been eased
out. "he reasoning is that one cannot say that
the offender, in the crime of arson, has already
performed all the acts of execution which could
produce the destruction of the premises through
the use of fire, unless a part of the premises has
begun to burn. If it has not begun to burn, that
means that the offender has not yet performed
all the acts of execution. )n the other hand, the
moment it begins to burn, the crime is
consummated. ctually, the frustrated stage is
already standing on the consummated stage
except that the outcome did not result. s far as
the stage is concerned, the frustrated stage
overlaps the consummated stage.
5ecause of this reasoning by the Court of
ppeals in #eople v. /arcia, the 0upreme
Court followed the analysis that one cannot say
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that the offender in the crime of arson has
already performed all the acts of execution
which would produce the arson as a
conse8uence, unless and until a part of the
premises had begun to burn.
In %$ v. -alde*, the offender had tried to burn
the premises by gathering jute sac%s laying
these inside the room. He lighted these, and as
soon as the jute sac%s began to burn, he ran
away. "he occupants of the room put out the
fire. "he court held that what was committed
was frustrated arson.
"his case was much the way before the
decision in the case of #eople v. /arcia was
handed down and the Court of ppeals ruled
that there is no frustrated arson. 5ut even then,
the analysis in the case of %$ v. -alde* is
correct. "his is because, in determining
whether the felony is attempted, frustrated or
consummated, the court does not only consider
the definition under rticle , of the +evised
(enal Code, or the stages of execution of the
felony. $hen the offender has already passed
the subjective stage of the felony, it is beyond
the attempted stage. It is already on the
consummated or frustrated stage depending on
whether a felony resulted. If the felony did not
result, frustrated.
"he attempted stage is said to be within the
subjective phase of execution of a felony. )n
the subjective phase, it is that point in time when
the offender begins the commission of an overt
act until that point where he loses control of the
commission of the crime already. If he has
reached that point where he can no longer
control the ensuing conse8uence, the crime has
already passed the subjective phase and,
therefore, it is no longer attempted. "he
moment the execution of the crime has already
gone to that point where the felony should follow
as a conse8uence, it is either already frustrated
or consummated. If the felony does not follow
as a conse8uence, it is already frustrated. If the
felony follows as a conse8uence, it is
consummated.
"he trouble is that, in the jurisprudence
recogni'ing the objective phase and the
subjective phase, the 0upreme Court
considered not only the acts of the offender, but
also his belief. "hat although the offender may
not have done the act to bring about the felony
as a conse8uence, if he could have continued
committing those acts but he himself did not
proceed because he believed that he had done
enough to consummate the crime, 0upreme
Court said the subjective phase has passed.
"his was applied in the case of %$ v. -alde*,
where the offender, having already put %erosene
on the jute sac%s, lighted the same, he had no
reason not to believe that the fire would spread,
so he ran away. "hat act demonstrated that in
his mind, he believed that he has performed all
the acts of execution and that it is only a matter
of time that the premises will burn. "he fact that
the occupant of the other room came out and
put out the fire is a cause independent of the will
of the perpetrator.
"he ruling in the case of %$ v. -alde* is still
correct. 5ut in the case of #eople v. /arcia,
the situation is different. Here, the offender who
put the torch over the house of the offended
party, the house being a nipa hut, the torch
which was lighted could easily burn the roof of
the nipa hut. 5ut the torch burned out.
In that case, you cannot say that the offender
believed that he had performed all the acts of
execution. "here was not even a single burn of
any instrument or agency of the crime.
"he analysis made by the Court of ppeals is
still correctD that they could not demonstrate a
situation where the offender has performed all
the acts of execution to bring about the crime of
arson and the situation where he has not yet
performed all the acts of execution. "he weight
of the authority is that the crime of arson cannot
be committed in the frustrated stage. "he
reason is because we can hardly determine
whether the offender has performed all the acts
of execution that would result in arson, as a
conse8uence, unless a part of the premises has
started to burn. )n the other hand, the moment
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a particle or a molecule of the premises has
blac%ened, in law, arson is consummated. "his
is because consummated arson does not
re8uire that the whole of the premises be
burned. It is enough that any part of the
premises, no matter how small, has begun to
burn.
"here are also certain crimes that do not admit
of the attempted or frustrated stage, li%e
physical injuries. One of the known
commentators in criminal law has
advanced the view that the crime of
physical injuries can be committed in the
attempted as well as the frustrated stage.
He explained that by going through the
defnition of an attempted and a
frustrated felony under Article 6 if a
person who was about to give a fst blow
to another raises his arms but before he
could throw the blow somebody holds
that arm there would be attempted
physical injuries. !he reason for this is
because the o"ender was not able to
perform all the acts of execution to bring
about physical injuries.
)n the other hand, he also stated that the crime
of physical injuries may be committed in the
frustrated stage when the offender was able to
throw the blow but somehow, the offended party
was able to sidestep away from the blow. He
reasoned out that the crime would be frustrated
because the offender was able to perform all the
acts of execution which would bring about the
felony were it not for a cause independent of the
will of the perpetrator.
"he explanation is academic. Mou will notice
that under the +evised (enal Code, the crime of
physical injuries is penali'ed on the basis of the
gravity of the injuries. ctually, there is no
simple crime of physical injuries. Mou have to
categori'e because there are specific articles
that apply whether the physical injuries are
serious, less serious or slight. If you say
physical injuries, you do not %now which article
to apply. "his being so, you could not punish
the attempted or frustrated stage because you
do not %now what crime of physical injuries was
committed.
uestions ! Answers
1. "s there an attempted slight
physical in$uries(
If there is no result, you do not %now.
Criminal law cannot stand on any speculation or
ambiguity7 otherwise, the presumption of
innocence would be sacrificed. "herefore, the
commentator’s opinion cannot stand because
you cannot tell what particular physical injuries
was attempted or frustrated unless the
conse8uence is there. Mou cannot classify the
physical injuries.
2. + threw muriatic acid on the face
of ,. he in$uries would have resulted in
deformity were it not for timely plastic surgery.
+fter the surgery% , became more handsome.
-hat crime is committed( "s it attempted%
frustrated or consummated(
"he crime committed here is serious
physical injuries because of the deformity.
$hen there is deformity, you disregard the
healing duration of the wound or the medical
treatment re8uired by the wound. In order that
in law, a deformity can be said to exist, three
factors must concurD
1/2 "he injury should bring about the
ugliness7
132 "he ugliness must be visible7
1-2 "he ugliness would not disappear
through natural healing process.
Along this concept of deformity in law the
plastic surgery applied to # is beside the
point. $n law what is considered is not the
artifcial or the scientifc treatment but the
natural healing of the injury. %o the fact
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that there was plastic surgery applied to #
does not relieve the o"ender from the
liability for the physical injuries in&icted.
!he crime committed is serious physical
injuries. $t is consummated. $n
determining whether a felony is
attempted frustrated or consummated
you have to consider the manner of
committing the felony the element of the
felony and the nature of the felony itself.
!here is no real hard and fast rule.
Elements of the crime
In the crime of estafa, the element of damage is
essential before the crime could be
consummated. If there is no damage, even if the
offender succeeded in carting away the
personal property involved, estafa cannot be
considered as consummated. &or the crime of
estafa to be consummated, there must be
misappropriation already done, so that there is
damage already suffered by the offended party.
If there is no damage yet, the estafa can only be
frustrated or attempted.
)n the other hand, if it were a crime of theft,
damage or intent to cause damage is not an
element of theft. $hat is necessary only is intent
to gain, not even gain is important. "he mere
intent to derive some profit is enough but the
thin%ing must be complete before a crime of
theft shall be consummated. "hat is why we
made that distinction between theft and estafa.
If the personal property was received by the
offender, this is where you have to decide
whether what was transferred to the offender is
juridical possession or physical possession only.
If the offender did not receive the personal
property, but too% the same from the possession
of the owner without the latter’s consent, then
there is no problem. "hat cannot be estafa7 this
is only theft or none at all.
In estafa, the offender receives the property7 he
does not ta%e it. 5ut in receiving the property,
the recipient may be committing theft, not
estafa, if what was transferred to him was only
the physical or material possession of the
object. It can only be estafa if what was
transferred to him is not only material or
physical possession but juridical possession as
well.
$hen you are discussing estafa, do not tal%
about intent to gain. In the same manner that
when you are discussing the crime of theft, do
not tal% of damage.
"he crime of theft is the one commonly given
under rticle ,. "his is so because the concept
of theft under the +evised (enal Code differs
from the concept of larceny under merican
common law. .nder merican common law, the
crime of larceny which is e8uivalent to our crime
of theft here re8uires that the offender must be
able to carry away or transport the thing being
stolen. $ithout that carrying away, the larceny
cannot be consummated.
In our concept of theft, the offender need not
move an inch from where he was. It is not a
matter of carrying away. It is a matter of
whether he has already ac8uired complete
control of the personal property involved. "hat
complete control simply means that the offender
has already supplanted his will from the will of
the possessor or owner of the personal property
involved, such that he could exercise his own
control on the thing.
IllustrationD
I placed a wallet on a table inside a room.
stranger comes inside the room, gets the wallet
and puts it in his poc%et. I suddenly started
searching him and I found the wallet inside his
poc%et. "he crime of theft is already
consummated because he already ac8uired
complete control of my wallet. "his is so true
when he removed the wallet from the confines
of the table. He can exercise his will over the
wallet already, he can drop this on the floor, etc.
5ut as long as the wallet remains on the table,
the theft is not yet consummated7 there can only
be attempted or frustrated theft. If he has started
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lifting the wallet, it is frustrated. If he is in the act
of trying to ta%e the wallet or place it under,
attempted.
@"a%ingA in the concept of theft, simply means
exercising control over the thing.
If instead of the wallet, the man who entered the
room pretended to carry the table out of the
room, and the wallet is there. $hile ta%ing the
table out of the room, I apprehended him. It
turned out that he is not authori'ed at all and is
interested only in the wallet, not the table. "he
crime is not yet consummated. It is only
frustrated because as far as the table is
concern, it is the confines of this room that is the
container. s long as he has not ta%en this table
out of the four walls of this room, the ta%ing is
not complete.
man entered a room and found a chest on the
table. He opened it found some valuables
inside. He too% the valuables, put them in his
poc%et and was arrested. In this case, theft is
consummated.
5ut if he does not ta%e the valuables but lifts the
entire chest, and before he could leave the
room, he was apprehended, there is frustrated
theft.
If the thing is stolen from a compound or from a
room, as long as the object has not been
brought out of that room, or from the perimeter
of the compound, the crime is only frustrated.
"his is the confusion raised in the case of %$ v.
5i6o compared with #eople v. Adio and
#eople v. Espiritu.
In %$ v. 5i6o, the accused loaded boxes of rifle
on their truc%. $hen they were on their way out
of the 0outh Harbor, they were chec%ed at the
chec%point, so they were not able to leave the
compound. It was held that what was
committed was frustrated "heft.
In #eople v. Espiritu, the accused were on their
way out of the supply house when they were
apprehended by military police who found them
secreting some hospital linen. It was held that
what was committed was consummated theft.
"he emphasis, which was erroneously laid in
some commentaries, is that, in both cases, the
offenders were not able to pass the chec%point.
5ut why is it that in one, it is frustrated and in
the other, it is consummatedL
In the case of %$ v. 5i6o, the boxes of rifle
were stoc%ed file inside the compound of the
0outh Harbor. s far as the boxes of rifle are
concerned, it is the perimeter of the compound
that is the container. s long as they were not
able to bring these boxes of rifle out of the
compound, the ta%ing is not complete. )n the
other hand, in the case of #eople v. Espiritu,
what were ta%en were hospital linens. "hese
were ta%en from a warehouse. Hospital linens
were ta%en from boxes that were diffused or
destroyed and brought out of the hospital. &rom
the moment they too% it out of the boxes where
the owner or the possessor had placed it, the
control is complete. Mou do not have to go out
of the compound to complete the ta%ing or the
control.
"his is very decisive in the problem because in
most problems given in the bar, the offender,
after having ta%en the object out of the container
changed his mind and returned it. Is he
criminally liableL <o not ma%e a mista%e by
saying that there is a desistance. If the crime is
one of theft, the moment he brought it out, it was
consummated. "he return of the thing cannot
be desistance because in criminal law,
desistance is true only in the attempted stage.
Mou cannot tal% of desistance anymore when it
is already in the consummated stage. If the
offender has already ac8uired complete control
of what he intended to ta%e, the fact that he
changed his mind and returned the same will no
longer affect his criminal liability. It will only
affect the civil liability of the crime because he
will no longer be re8uired to pay the object. s
far as the crime committed is concerned, the
offender is criminally liable and the crime is
consummated theft.
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IllustrationD
and 5 are neighbors. )ne evening, entered
the yard of 5 and opened the chic%en coop
where 5 %eeps his fighting coc%s. He
discovered that the fighting coc%s were not
physically fit for coc%fighting so he returned it.
"he crime is consummated theft. "he will of the
owner is to %eep the fighting coc% inside the
chic%en coop. $hen the offender succeeded in
bringing the coc% out of the coop, it is clear that
his will completely governed or superseded the
will of the owner to %eep such coc% inside the
chic%en coop. Hence, the crime was already
consummated, and being consummated, the
return of the owner’s property is not desistance
anymore. "he offender is criminally liable but
he will not be civilly liable because the object
was returned.
$hen the receptacle is loc%ed or sealed, and
the offender bro%e the same, in lieu of theft, the
crime is robbery with force upon things.
However, that the receptacle is loc%ed or sealed
has nothing to do with the stage of the
commission of the crime. It refers only to
whether it is theft or robbery with force upon
things.
Nature of the crime itself
In crimes involving the ta%ing of human life 4
parricide, homicide, and murder 4 in the
definition of the frustrated stage, it is
indispensable that the victim be mortally
wounded. .nder the definition of the frustrated
stage, to consider the offender as having
performed all the acts of execution, the acts
already done by him must produce or be
capable of producing a felony as a
conse8uence. "he general rule is that there
must be a fatal injury inflicted, because it is only
then that death will follow.
If the wound is not mortal, the crime is only
attempted. "he reason is that the wound
inflicted is not capable of bringing about the
desired felony of parricide, murder or homicide
as a conse8uence7 it cannot be said that the
offender has performed all the acts of execution
which would produce parricide, homicide or
murder as a result.
n exception to the general rule is the so#called
subjective phase. "he 0upreme Court has
decided cases which applied the subjective
standard that when the offender himself
believed that he had performed all the acts of
execution, even though no mortal wound was
inflicted, the act is already in the frustrated
stage.
CON%$IRACY AN, $RO$O%AL TO COMMITE
A /ELONY
"wo ways for conspiracy to existD
1/2 "here is an agreement.
132 "he participants acted in concert or
simultaneously which is indicative of a
meeting of the minds towards a common
criminal goal or criminal objective. $hen
several offenders act in a synchroni'ed,
coordinated manner, the fact that their
acts complimented each other is
indicative of the meeting of the minds.
"here is an implied agreement.
"wo %inds of conspiracyD
1/2 Conspiracy as a crime7 and
132 Conspiracy as a manner of incurring
criminal liability
$hen conspiracy itself is a crime, no overt act is
necessary to bring about the criminal liability.
"he mere conspiracy is the crime itself. "his is
only true when the law expressly punishes the
mere conspiracy7 otherwise, the conspiracy
does not bring about the commission of the
crime because conspiracy is not an overt act but
a mere preparatory act. "reason, rebellion,
sedition, and coup d’etat are the only crimes
where the conspiracy and proposal to commit to
them are punishable.
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uestion ! Answer
Hnion + proposed acts of sedition to
Hnion ,. "s there a crime committed( +ssuming
Hnion , accepts the proposal% will your answer
be different(
"here is no crime committed. (roposal
to commit sedition is not a crime. 5ut if .nion 5
accepts the proposal, there will be conspiracy to
commit sedition which is a crime under the
+evised (enal Code.
$hen the conspiracy is only a basis of incurring
criminal liability, there must be an overt act done
before the co#conspirators become criminally
liable.
$hen the conspiracy itself is a crime, this
cannot be inferred or deduced because there is
no overt act. ll that there is the agreement.
)n the other hand, if the co#conspirator or any
of them would execute an overt act, the crime
would no longer be the conspiracy but the overt
act itself.
IllustrationD
, 5, C and < came to an agreement to commit
rebellion. "heir agreement was to bring about
the rebellion on a certain date. Even if none of
them has performed the act of rebellion, there is
already criminal liability arising from the
conspiracy to commit the rebellion. 5ut if
anyone of them has committed the overt act of
rebellion, the crime of all is no longer conspiracy
to commit rebellion but rebellion itself. "his
subsists even though the other co#conspirator
does not %now that one of them had already
done the act of rebellion.
"his legal conse8uence is not true if the
conspiracy is not a crime. If the conspiracy is
only a basis of criminal liability, none of the co#
conspirators would be liable, unless there is an
overt act. 0o, for as long as anyone shall desist
before an overt act in furtherance of the crime
was committed, such a desistance would negate
criminal liability.
IllustrationD
"hree persons plan to rob a ban%. &or as long
as none of the conspirators has committed an
overt act, there is no crime yet. 5ut when one of
them commits any overt act, all of them shall be
held liable, unless a co#conspirator was absent
from the scene of the crime or he showed up,
but he tried to prevent the commission of the
crime
s a general rule, if there has been a conspiracy
to commit a crime in a particular place, anyone
who did not appear shall be presumed to have
desisted. "he exception to this is if such person
who did not appear was the mastermind.
$e have to observe the distinction between the
two because conspiracy as a crime, must have
a clear and convincing evidence of its existence.
Every crime must be proved beyond reasonable
doubt.
$hen the conspiracy is just a basis of incurring
criminal liability, however, the same may be
deduced or inferred from the acts of several
offenders in carrying out the commission of the
crime. "he existence of a conspiracy may be
reasonably inferred from the acts of the
offenders when such acts disclose or show a
common pursuit of the criminal objective. "his
was the ruling in #eople v. #into, 271 $C2A 9.
lthough conspiracy is defined as two or more
person coming to an agreement regarding the
commission of a felony and deciding to commit
it, the word @personA here should not be
understood to re8uire a meeting of the co#
conspirator regarding the commission of the
felony. conspiracy of the second %ind can be
inferred or deduced even though they have not
met as long as they acted in concert or
simultaneously, indicative of a meeting of the
minds toward a common goal or objective.
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Conspiracy is a matter of substance which must
be alleged in the information, otherwise, the
court will not consider the same.
In #eople v. 8aurio, 277 $C2A 189, it was held
that it must be established by positive and
conclusive evidence, not by conjectures or
speculations.

In Taer v. CA, 18" $C2A 0987, it was held that
mere %nowledge, ac8uiescence to, or approval
of the act, without cooperation or at least,
agreement to cooperate, is not enough to
constitute a conspiracy. "here must be an
intentional participation in the crime with a view
to further the common felonious objective.
$hen several persons who do not %now each
other simultaneously attac% the victim, the act of
one is the act of all, regardless of the degree of
injury inflicted by any one of them. ll will be
liable for the conse8uences. conspiracy is
possible even when participants are not %nown
to each other. <o not thin% that participants are
always %nown to each other.
IllustrationsD
thought of having her husband %illed because
the latter was maltreating her. 0he hired some
persons to %ill him and pointed at her husband.
"he goons got hold of her husband and started
mauling him. "he wife too% pity and shouted for
them to stop but the goons continued. "he wife
ran away. "he wife was prosecuted for
parricide. 5ut the 0upreme Court said that
there was desistance so she is not criminally
liable.
law student resented the fact that his brother
was %illed by . He hired 5 to %ill and offered
him (=F,FFF.FF. He disclosed to 5 that was
being arraigned in the City Hall of :anila and
told him to execute the plan on the following
day. In the evening of that same day, the law
student changed his mind so he immediately
went to the police and told them to dispatch
police officers to prevent 5 from committing the
crime. .nfortunately, the police were caught in
traffic causing their delay, so that when they
reached the place, 5 had already %illed . In
this case, there was no proposal but a
conspiracy. "hey have conspired to execute a
crime but the crime involved here is murder and
a conspiracy to commit murder is not a crime in
itself but merely a basis for incurring criminal
liability. "his is just a preparatory act, and his
desistance negates criminal liability.
(roposal is true only up to the point where the
party to whom the proposal was made has not
yet accepted the proposal. )nce the proposal
was accepted, a conspiracy arises. (roposal is
unilateral, one party ma%es a proposition to the
other7 conspiracy is bilateral, it re8uires two
parties.
s pointed out earlier, desistance is true only in
the attempted stage. 5efore this stage, there is
only a preparatory stage. Conspiracy is only in
the preparatory stage.
"he 0upreme Court has ruled that one who
desisted is not criminally liable. @$hen a
person has set foot to the path of wic%edness
and brings bac% his foot to the path of
righteousness, the law shall reward him for
doing so.A
$here there are several persons who
participated, li%e in a %illing, and they attac%ed
the victim simultaneously, so much so that it
cannot be %nown what participation each one
had, all these participants shall be considered
as having acted in conspiracy and they will be
held collectively responsible.
<o not search for an agreement among the
participants. If they acted simultaneously to
bring about their common intention, conspiracy
exists. nd when conspiracy exists, do not
consider the degree of participation of each
conspirator because the act of one is the act of
all. s a general rule, they have e8ual criminal
responsibility.
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uestion ! Answer
here are several offenders who acted
simultaneously. -hen they fled% a victim was
found dead. -ho should be liable for the killing
if who actually killed the victim is not known(
"here is collective responsibility here.
$ithout the principle of conspiracy, nobody
would be prosecuted7 hence, there is the rule on
collective responsibility since it cannot be
ascertained who actually %illed the victim.
"here is conspiracy when the offenders acted
simultaneously pursuing a common criminal
design7 thus, acting out a common criminal
intent.
IllustrationD
, 5 and C have been courting the same lady
for several years. )n several occasions, they
even visited the lady on intervening hours.
5ecause of this, , 5 and C became hostile with
one another. )ne day, < invited the young lady
and she accepted the invitation. Eventually, the
young lady agreed to marry <. $hen , 5 and
C learned about this, they all stood up to leave
the house of the young lady feeling
disappointed. $hen loo%ed bac% at the young
lady with <, he saw < laughing menacingly. t
that instance, stabbed <. C and 5 followed.
In this case, it was held that conspiracy was
present.
"he common notion is that when there is
conspiracy involved, the participants are
punished as principals. "his notion is no longer
absolute. In the case of #eople v. 3ierra, the
0upreme Court ruled that even though there
was conspiracy, if a co#conspirator merely
cooperated in the commission of the crime with
insignificant or minimal acts, such that even
without his cooperation, the crime could be
carried out as well, such co#conspirator should
be punished as an accomplice only. "he reason
given is that penal laws always favor a milder
form of responsibility upon an offender. 0o it is
no longer accurate to thin% that when there is a
conspiracy, all are principals.
!otwithstanding that there is conspiracy, a co#
conspirator may be held liable only as an
accomplice. "hat means the penalty which shall
be imposed upon him is one degree lower.
&or example, there was a planned robbery, and
the taxi driver was present during the planning.
"here, the conspirators told the taxi driver that
they are going to use his taxicab in going to the
place of robbery. "he taxi driver agreed but
said, @I will bring you there, and after committing
the robbery I will return laterA. "he taxi driver
brought the conspirators where the robbery
would be committed. fter the robbery was
finished, he too% the conspirators bac% to his
taxi and brought them away. It was held that the
taxi driver was liable only as an accomplice. His
cooperation was not really indispensable. "he
robbers could have engaged another taxi. "he
taxi driver did not really stay during the
commission of the robbery. t most, what he
only extended was his cooperation. "hat is why
he was given only that penalty for an
accomplice.
, 5, and C, under the influence of marijuana,
bro%e into a house because they learned that
the occupants have gone on an excursion.
"hey ransac%ed the house. got a colored "6,
5 saw a camera and too% that, and C found a
can of salmon and too% that. In the crime of
robbery with force upon things, the penalty is
based on the totality of the value of the personal
property ta%en and not on the individual property
ta%en by him.
In $iton v. CA, it was held that the idea of a
conspiracy is incompatible with the idea of a
free for all. "here is no definite opponent or
definite intent as when a bas%etball crowd beats
a referee to death.
Composite crimes
Composite crimes are crimes which, in
substance, consist of more than one crime but
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in the eyes of the law, there is only one crime.
&or example, the crimes of robbery with
homicide, robbery with rape, robbery with
physical injuries.
In case the crime committed is a composite
crime, the conspirator will be liable for all the
acts committed during the commission of the
crime agreed upon. "his is because, in the
eyes of the law, all those acts done in
pursuance of the crime agreed upon are acts
which constitute a single crime.
IllustrationsD
, 5, and C decided to commit robbery in the
house of <. (ursuant to their agreement,
would ransac% the second floor, 5 was to wait
outside, and C would stay on the first floor.
.n%nown to 5 and C, raped the girl upstairs.
ll of them will be liable for robbery with rape.
"he crime committed is robbery with rape, which
is not a complex crime, but an indivisible felony
under the rticle 3>9 of the +evised (enal
Code. Even if 5 and C did not %now that rape
was being committed and they agreed only and
conspired to rob, yet rape was part of robbery.
+ape can not be separated from robbery.
, 5 and C agreed to rob the house of <. It was
agreed that would go the second floor, 5
would stay in the first floor, and C stands guard
outside. ll went to their designated areas in
pursuit of the plan. $hile was ransac%ing the
second floor, the owner was awa%ened. %illed
him. , 5 and C will be liable for robbery with
homicide. "his is because, it is well settled that
any %illing ta%ing place while robbery is being
committed shall be treated as a single indivisible
offense.
s a general rule, when there is conspiracy, the
rule is that the act of one is the act of all. "his
principle applies only to the crime agreed upon.
"he exception is if any of the co#conspirator
would commit a crime not agreed upon. "his
happens when the crime agreed upon and the
crime committed by one of the co#conspirators
are distinct crimes.
Exception to the exceptionD In acts constituting
a single indivisible offense, even though the co#
conspirator performed different acts bringing
about the composite crime, all will be liable for
such crime. "hey can only evade responsibility
for any other crime outside of that agreed upon
if it is proved that the particular conspirator had
tried to prevent the commission of such other
act.
"he rule would be different if the crime
committed was not a composite crime.
IllustrationD
, 5 and C agreed to %ill <. $hen they saw the
opportunity, , 5 and C %illed < and after that,
and 5 ran into different directions. C inspected
the poc%et of the victim and found that the victim
was wearing a ring 4 a diamond ring 4 and he
too% it. "he crimes committed are homicide and
theft. s far as the homicide is concerned, , 5
and C are liable because that was agreed upon
and theft was not an integral part of homicide.
"his is a distinct crime so the rule will not apply
because it was not the crime agreed upon.
Insofar as the crime of theft is concerned, C will
be the only one liable. 0o C will be liable for
homicide and theft.
CLA%%I/ICATION O/ /ELONIE%
"his 8uestion was as%ed in the bar examinationD
How do you classify felonies or how are felonies
classifiedL
$hat the examiner had in mind was rticles -, ,
and >. <o not write the classification of felonies
under 5oo% 3 of the +evised (enal Code. "hat
was not what the examiner had in mind because
the 8uestion does not re8uire the candidate to
classify but also to define. "herefore, the
examiner was after the classifications under
rticles -, , and >.
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&elonies are classified as followsD
.1/ ccording to the manner of their
commission
.nder rticle -, they are classified as,
intentional felonies or those committed
with deliberate intent7 and culpable
felonies or those resulting from
negligence, rec%less imprudence, lac% of
foresight or lac% of s%ill.
.2/ ccording to the stages of their
execution
Hnder +rticle C.% felonies are classified as
attempted felony when the offender
commences the commission of a felony
directly by overt acts% and does not
perform all the acts of execution which
should produce the felony by reason of
some cause or accident other than his
own spontaneous desistance7 frustrated
felony when the offender commences the
commission of a felony as a
conse*uence but which would produce
the felony as a conse*uence but which
nevertheless do not produce the felony
by reason of causes independent of the
perpetrator7 and% consummated felony
when all the elements necessary for its
execution are present.
.3/ ccording to their gravity
.nder rticle >, felonies are classified as
grave felonies or those to which attaches
the capital punishment or penalties
which in any of their periods are
afflictive7 less grave felonies or those to
which the law punishes with penalties
which in their maximum period was
correccional7 and light felonies or those
infractions of law for the commission of
which the penalty is arresto menor.
$hy is it necessary to determine whether the
crime is grave, less grave or lightL
"o determine whether these felonies can be
complexed or not, and to determine the
prescription of the crime and the prescription of
the penalty. In other words, these are felonies
classified according to their gravity, stages and
the penalty attached to them. "a%e note that
when the +evised (enal Code spea%s of grave
and less grave felonies, the definition ma%es a
reference specifically to rticle 3= of the
+evised (enal Code. <o not omit the phrase
@In accordance with rticle 3=A because there is
also a classification of penalties under rticle 3,
that was not applied.
If the penalty is fine and exactly (3FF.FF, it is
only considered a light felony under rticle >.
If the fine is imposed as an alternative penalty or
as a single penalty, the fine of (3FF.FF is
considered a correctional penalty under rticle
3,.
If the penalty is exactly (3FF.FF, apply rticle
3,. It is considered as correctional penalty and
it prescribes in /F years. If the offender is
apprehended at any time within ten years, he
can be made to suffer the fine.
"his classification of felony according to gravity
is important with respect to the 8uestion of
prescription of crimes.
In the case of light felonies, crimes prescribe in
two months. fter two months, the state loses
the right to prosecute unless the running period
is suspended. If the offender escapes while in
detention after he has been loose, if there was
already judgment that was passed, it can be
promulgated even if absent under the !ew
+ules on Criminal (rocedure. If the crime is
correctional, it prescribes in ten years, except
arresto mayor, which prescribes in five years.
%.$$LETORY A$$LICATION O/ T0E
RE&I%E, $ENAL CO,E
rticle /F is the conse8uence of the legal
re8uirement that you have to distinguish those
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punished under special laws and those under
the +evised (enal Code. $ith regard to rticle
/F, observe the distinction.
In rticle /F, there is a reservation @provision of
the +evised (enal Code may be applied
suppletorily to special lawsA. Mou will only apply
the provisions of the +evised (enal Code as a
supplement to the special law, or simply
correlate the violated special law, if needed to
avoid an injustice. If no justice would result, do
not give suppletorily application of the +evised
(enal Code to that of special law.
&or example, a special law punishes a certain
act as a crime. "he special law is silent as to
the civil liability of one who violates the same.
Here is a person who violated the special law
and he was prosecuted. His violation caused
damage or injury to a private party. :ay the
court pronounce that he is civilly liable to the
offended party, considering that the special law
is silent on this pointL Mes, because rticle /FF
of the +evised (enal Code may be given
suppletory application to prevent an injustice
from being done to the offended party. rticle
/FF states that every person criminally liable for
a felony is also civilly liable. "hat article shall be
applied suppletory to avoid an injustice that
would be caused to the private offended party, if
he would not be indemnified for the damages or
injuries sustained by him.
In #eople v. 2odriue*, it was held that the use
of arms is an element of rebellion, so a rebel
cannot be further prosecuted for possession of
firearms. violation of a special law can never
absorb a crime punishable under the +evised
(enal Code, because violations of the +evised
(enal Code are more serious than a violation of
a special law. 5ut a crime in the +evised (enal
Code can absorb a crime punishable by a
special law if it is a necessary ingredient of the
crime in the +evised (enal Code.
In the crime of sedition, the use of firearms is
not an ingredient of the crime. Hence, two
prosecutions can be hadD 1/2 sedition7 and 132
illegal possession of firearms.
5ut do not thin% that when a crime is punished
outside of the +evised (enal Code, it is already
a special law. &or example, the crime of cattle#
rustling is not a mala prohibitum but a
modification of the crime theft of large cattle. 0o
(residential <ecree !o. =--, punishing cattle#
rustling, is not a special law. It can absorb the
crime of murder. If in the course of cattle
rustling, murder was committed, the offender
cannot be prosecuted for murder. :urder would
be a 8ualifying circumstance in the crime of
8ualified cattle rustling. "hias was the ruling in
#eople v. Martinada.
"he amendments of (residential <ecree !o.
,93= 1"he <angerous <rugs ct of />C32 by
+epublic ct !o. C,=>, which adopted the scale
of penalties in the +evised (enal Code, means
that mitigating and aggravating circumstances
can now be considered in imposing penalties.
(residential <ecree !o. ,93= does not
expressly prohibit the suppletory application of
the +evised (enal Code. "he stages of the
commission of felonies will also apply since
suppletory application is now allowed.
Circumstances affecting criminal lia)ilit(
here are five circumstances affecting criminal
liabilityE
.1/ 3ustifying circumstances7
.2/ 4xempting circumstances7
.3/ Mitigating circumstances7
.4/ +ggravating circumstances7 and
.:/ +lternative circumstances.
here are two others which are found elsewhere
in the provisions of the 'evised !enal )odeE
.1/ +bsolutory cause7 and

.2/ 4xtenuating circumstances.
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"n $ustifying and exempting circumstances% there
is no criminal liability. -hen an accused invokes
them% he in effect admits the commission of a
crime but tries to avoid the liability thereof. he
burden is upon him to establish beyond
reasonable doubt the re*uired conditions to
$ustify or exempt his acts from criminal liability.
-hat is shifted is only the burden of evidence%
not the burden of proof.
3ustifying circumstances contemplate intentional
acts and% hence% are incompatible with dolo.
4xempting circumstances may be invoked in
culpable felonies.
A)solutor( cause
"he effect of this is to absolve the offender from
criminal liability, although not from civil liability.
It has the same effect as an exempting
circumstance, but you do not call it as such in
order not to confuse it with the circumstances
under rticle /3.
rticle 3F provides that the penalties prescribed
for accessories shall not be imposed upon those
who are such with respect to their spouses,
ascendants, descendants, legitimate, natural
and adopted brothers and sisters, or relatives by
affinity within the same degrees with the
exception of accessories who profited
themselves or assisting the offender to profit by
the effects of the crime.
"hen, rticle ?> provides how criminal liability is
extinguishedD
<eath of the convict as to the personal
penalties, and as to pecuniary penalties, liability
therefor is extinguished if death occurs before
final judgment7
0ervice of the sentence7
mnesty7
bsolute pardon7
(rescription of the crime7
(rescription of the penalty7 and
:arriage of the offended woman as provided in
rticle -99.
.nder rticle 39C, a legally married person who
%ills or inflicts physical injuries upon his or her
spouse whom he surprised having sexual
intercourse with his or her paramour or mistress
in not criminally liable.
.nder rticle 3/>, discovering secrets through
sei'ure of correspondence of the ward by their
guardian is not penali'ed.
.nder rticle --3, in the case of theft, swindling
and malicious mischief, there is no criminal
liability but only civil liability, when the offender
and the offended party are related as spouse,
ascendant, descendant, brother and sister#in#
law living together or where in case the widowed
spouse and the property involved is that of the
deceased spouse, before such property had
passed on to the possession of third parties.
.nder rticle -99, in cases of seduction,
abduction, acts of lasciviousness, and rape, the
marriage of the offended party shall extinguish
the criminal action.
bsolutory cause has the effect of an exempting
circumstance and they are predicated on lac% of
voluntariness li%e instigation. Instigation is
associated with criminal intent. <o not consider
culpa in connection with instigation. If the crime
is culpable, do not tal% of instigation. In
instigation, the crime is committed with dolo. It is
confused with entrapment.
Entrapment is not an absolutory cause.
Entrapment does not exempt the offender or
mitigate his criminal liability. 5ut instigation
absolves the offender from criminal liability
because in instigation, the offender simply acts
as a tool of the law enforcers and, therefore, he
is acting without criminal intent because without
the instigation, he would not have done the
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criminal act which he did upon instigation of the
law enforcers.
<ifference between instigation and entrapment
In instigation, the criminal plan or design exists
in the mind of the law enforcer with whom the
person instigated cooperated so it is said that
the person instigated is acting only as a mere
instrument or tool of the law enforcer in the
performance of his duties.
)n the other hand, in entrapment, a criminal
design is already in the mind of the person
entrapped. It did not emanate from the mind of
the law enforcer entrapping him. Entrapment
involves only ways and means which are laid
down or resorted to facilitate the apprehension
of the culprit.
IllustrationsD
n agent of the narcotics command had been
tipped off that a certain house is being used as
an opium den by prominent members of the
society. "he law enforcers cannot themselves
penetrate the house because they do not belong
to that circle so what they did was to convince a
prominent member of society to visit such house
to find out what is really happening inside and
that so many cars were congregating there. "he
law enforcers told the undercover man that if he
is offered a cigarette, then he should try it to find
out whether it is loaded with dangerous drugs or
not. "his fellow went to the place and mingled
there. "he time came when he was offered a
stic% of cigarette and he tried it to see if the
cigarette would affect him. .nfortunately, the
raid was conducted and he was among those
prosecuted for violation of the <angerous <rugs
ct. Is he criminally liableL !o. He was only
there upon instigation of the law enforcers. )n
his own, he would not be there. "he reason he
is there is because he cooperated with the law
enforcers. "here is absence of criminal intent.
If the law enforcer were able to enter the house
and mingle there, nobody would offer him a
cigarette because he is un%nown. $hen he saw
somebody, he pleaded to spare him a smo%e so
this fellow handed to him the cigarette he was
smo%ing and found out that it was loaded with a
dangerous drug. He arrested the fellow.
<efense was that he would not give a cigarette
if he was not as%ed. Is he criminally liableL
Mes. "his is a case of entrapment and not
instigation. Even if the law enforcer did not as%
for a cigarette, the offender was already
committing a crime. "he law enforcer
ascertained if it is a violation of the <angerous
<rugs ct. "he means employed by the law
enforcer did not ma%e the accused commit a
crime. Entrapment is not an absolutory cause
because in entrapment, the offender is already
committing a crime.
In another instance, a law enforcer pretended to
be a buyer of marijuana. He approached a
person suspected to be a pusher and prevailed
upon this person to sell him two %ilos of dried
marijuana leaves and this fellow gave him and
delivered them. He apprehended the fellow.
<efense is instigation, because he would not
have come out for the marijuana leaves if the
law enforcer had not instigated him. It is a case
of entrapment because the fellow is already
committing the crime from the mere fact that he
is possessing marijuana. Even without selling,
there is a crime committed by himD illegal
possession of dangerous drugs. How can one
sell marijuana if he is not in possession thereof.
"he law enforcer is only ascertaining if this
fellow is selling marijuana leaves, so this is
entrapment, not instigation. 0elling is not
necessary to commit the crime, mere
possession is already a crime.
fellow wants to ma%e money. He was
approached by a law enforcer and was as%ed if
he wanted to deliver a pac%age to a certain
person. $hen that fellow was delivering the
pac%age, he was apprehended. Is he criminally
liableL "his is a case of instigation7 he is not
committing a crime.
policeman suspected a fellow selling
marijuana. "he law enforcer as%ed him, @re
you selling thatL How muchL Could you bring
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that to the other fellow thereLA $hen he
brought it there, the person, who happens to be
a law enforcer, to whom the pac%age was
brought to found it to be marijuana. Even
without bringing, he is already possessing the
marijuana. "he fact that he was appointed to
another person to find out its contents, is to
discover whether the crime is committed. "his
is entrapment.
"he element which ma%es instigation an
absolutory cause is the lac% of criminal intent as
an element of voluntariness.
If the instigator is a law enforcer, the person
instigated cannot be criminally liable, because it
is the law enforcer who planted that criminal
mind in him to commit the crime, without which
he would not have been a criminal. If the
instigator is not a law enforcer, both will be
criminally liable, you cannot have a case of
instigation. In instigation, the private citi'en only
cooperates with the law enforcer to a point when
the private citi'en upon instigation of the law
enforcer incriminates himself. It would be
contrary to public policy to prosecute a citi'en
who only cooperated with the law enforcer. "he
private citi'en believes that he is a law enforcer
and that is why when the law enforcer tells him,
he believes that it is a civil duty to cooperate.
If the person instigated does not %now that the
person is instigating him is a law enforcer or he
%nows him to be not a law enforcer, this is not a
case of instigation. "his is a case of
inducement, both will be criminally liable.
In entrapment, the person entrapped should not
%now that the person trying to entrap him was a
law enforcer. "he idea is incompatible with
each other because in entrapment, the person
entrapped is actually committing a crime. "he
officer who entrapped him only lays down ways
and means to have evidence of the commission
of the crime, but even without those ways and
means, the person entrapped is actually
engaged in a violation of the law.
Instigation absolves the person instigated from
criminal liability. "his is based on the rule that a
person cannot be a criminal if his mind is not
criminal. )n the other hand, entrapment is not
an absolutory cause. It is not even mitigating.
In case of somnambulism or one who acts while
sleeping, the person involved is definitely acting
without freedom and without sufficient
intelligence, because he is asleep. He is
moving li%e a robot, unaware of what he is
doing. 0o the element of voluntariness which is
necessary in dolo and culpa is not present.
0omnambulism is an absolutory cause. If
element of voluntariness is absent, there is no
criminal liability, although there is civil liability,
and if the circumstance is not among those
enumerated in rticle /3, refer to the
circumstance as an absolutory cause.
:ista%e of fact is not absolutory cause. "he
offender is acting without criminal intent. 0o in
mista%e of fact, it is necessary that had the facts
been true as the accused believed them to be,
this act is justified. If not, there is criminal
liability, because there is no mista%e of fact
anymore. "he offender must believe he is
performing a lawful act.
E4tenuating circumstances

"he effect of this is to mitigate the criminal
liability of the offender. In other words, this has
the same effect as mitigating circumstances,
only you do not call it mitigating because this is
not found in rticle /-.
IllustrationsD
n unwed mother %illed her child in order to
conceal a dishonor. "he concealment of
dishonor is an extenuating circumstance insofar
as the unwed mother or the maternal
grandparents is concerned, but not insofar as
the father of the child is concerned. :other
%illing her new born child to conceal her
dishonor, penalty is lowered by two degrees.
0ince there is a material lowering of the penalty
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or mitigating the penalty, this is an extenuating
circumstance.
"he concealment of honor by mother in the
crime of infanticide is an extenuating
circumstance but not in the case of parricide
when the age of the victim is three days old and
above.
In the crime of adultery on the part of a married
woman abandoned by her husband, at the time
she was abandoned by her husband, is it
necessary for her to see% the company of
another man. bandonment by the husband
does not justify the act of the woman. It only
extenuates or reduces criminal liability. $hen
the effect of the circumstance is to lower the
penalty there is an extenuating circumstance.
%leptomaniac is one who cannot resist the
temptation of stealing things which appeal to his
desire. "his is not exempting. )ne who is a
%leptomaniac and who would steal objects of his
desire is criminally liable. 5ut he would be given
the benefit of a mitigating circumstance
analogous to paragraph > of rticle /-, that of
suffering from an illness which diminishes the
exercise of his will power without, however,
depriving him of the consciousness of his act.
0o this is an extenuating circumstance. "he
effect is to mitigate the criminal liability.
,istinctions )etween "ustif(ing
circumstances an# e4empting
circumstances
In justifying circumstances 4
1/2 "he circumstance affects the act, not the
actor7
132 "he act complained of is considered to
have been done within the bounds of
law7 hence, it is legitimate and lawful in
the eyes of the law7
1-2 0ince the act is considered lawful, there
is no crime, and because there is no
crime, there is no criminal7
192 0ince there is no crime or criminal, there
is no criminal liability as well as civil
liability.
In exempting circumstances 4
1/2 "he circumstances affect the actor, not
the act7
132 "he act complained of is actually
wrongful, but the actor acted without
voluntariness. He is a mere tool or
instrument of the crime7
1-2 0ince the act complained of is actually
wrongful, there is a crime. 5ut because
the actor acted without voluntariness,
there is absence of dolo or culpa. "here
is no criminal7
192 0ince there is a crime committed but
there is no criminal, there is civil liability
for the wrong done. 5ut there is no
criminal liability. However, in paragraphs
9 and C of rticle /3, there is neither
criminal nor civil liability.
$hen you apply for justifying or exempting
circumstances, it is confession and avoidance
and burden of proof shifts to the accused and he
can no longer rely on wea%ness of prosecution’s
evidence
3ustif(ing circumstances
0ince the justifying circumstances are in the
nature of defensive acts, there must be always
unlawful aggression. "he reasonableness of
the means employed depends on the gravity of
the aggression. If the unlawful aggressor was
%illed, this can only be justified if it was done to
save the life of the person defending or the
person being defended. "he e8uation is @life
was ta%en to save life.A
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2elf 9efense
In justifying circumstances, the most important
is self#defense. $hen this is given in the bar, it
is the element of unlawful aggression that is in
issue. !ever confuse unlawful aggression with
provocation. :ere provocation is not enough.
IllustrationD
and 5 are long standing enemies. 5ecause of
their continuous 8uarrel over the boundaries of
their adjoining properties, when saw 5 one
afternoon, he approached the latter in a
menacing manner with a bolo in his hand.
$hen he was about five feet away from 5, 5
pulled out a revolver and shot on the chest,
%illing him. Is 5 criminally liableL $hat crime
was committed, if anyL
"he act of is nothing but a provocation. It
cannot be characteri'ed as an unlawful
aggression because in criminal law, an unlawful
aggression is an attac% or a threatened attac%
which produces an imminent danger to the life
and limb of the one resorting to self#defense. In
the facts of the problem given above, what was
said was that was holding a bolo. "hat bolo
does not produce any real or imminent danger
unless a raises his arm with the bolo. s long
as that arm of was down holding the bolo,
there is no imminent danger to the life or limb of
5. "herefore, the act of 5 in shooting is not
justified.
<efense of rights is included in the
circumstances of defense and so is defense of
honor.
In %$ v. Mateo, while a woman was sleeping,
her sister and brother#in#law went to see a
movie and came home late that evening. "he
accused was already asleep. "he brother#in#
law came up first while his wife was still in the
staircase. He started feeling through the dar%,
and in the process, he awa%ened the accused.
5elieving that her honor was at sta%e, she got a
pair of scissors and stabbed the man. $hen the
lights were turned on, she reali'ed that she had
stabbed her brother#in#law. "he accused
claimed as having acted in defense of her honor
and mista%e of fact. 0he said that she believed
that her own honor was at sta%e. It was held
that the whole matter is purely her imagination.
"ouching the arm could not produce such
danger as would really be imminent to the honor
of the woman.
pparently, under the +evised (enal Code, the
honor of a woman in respect of her defense is
e8uated with her virginity.
In %$ v. !auriue, it was held that it was not
possible to rape the accused because the whole
thing transpired in the church, where there were
so many people. "herefore, her availing of
defense of honor is not tenable. 0he could not
possibly be raped in that place. <efense of
honor here is being e8uated with one of abuse
of chastity of a woman. In this case, the
offended party placed his hand on the thigh of
the woman who was then praying. "here was
already some sort of aggression but it was not
enough to warrant the act resorted to by the
accused in getting a small %nife from her bag
and thrusting it on the chest of the offended
party.
<o not confuse unlawful aggression with
provocation. $hat justifies the %illing of a
supposed unlawful aggressor is that if the
offender did not %ill the aggressor, it will be his
own life that will be lost. "hat will be the
situation. If that is not the situation, even if there
was an unlawful aggression that has already
begun, you cannot invo%e self#defense.
IllustrationD
"wo policemen 8uarreled inside a police
precinct. )ne shot the other. "he other was
wounded on his thigh. "he policeman who was
wounded on the thigh jumped on the arm of the
fellow who shot him. In the process, they
wrestled for possession of the gun. "he
policeman who shot the other guy fell on the
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floor. )n that point, this policeman who was
shot at the thigh was already able to get hold of
the revolver. In that position, he started
emptying the revolver of the other policeman
who was lying on the floor. In this case, it was
held that the defense of self#defense is no
available. "he shooting was not justified.

In #eople v. 2odriue*, a woman went into the
house of another woman whom she suspected
of having an affair with her husband. 0he
started pouring gasoline on the house of the
woman. 0ince the woman has children inside
the house, she jumped out to prevent this other
woman from pouring gasoline around the house.
"he woman who was pouring gasoline had a
bolo, so she started hac%ing the other woman
with it. "hey grappled with the bolo. t that
moment, the one who jumped out of the house
was able to wrest the bolo away and started
hac%ing the other woman. It was held that the
hac%ing was not justified. ctually, when she
%illed the supposed unlawful aggressor, her life
and limb were no longer in imminent danger.
"hat is the focal point.
t the time the accused %illed the supposed
unlawful aggressor, was her life in dangerL If
the answer is no, there is no self#defense. 5ut
while there may be no justifying circumstance,
do not forget the incomplete self#defense. "his
is a mitigating circumstance under paragraph /
of rticle /-. "his mitigating circumstance is
either privileged or ordinary. If ordinary, it has
the effect of reducing the imposable penalty to
the minimum period. 5ut if it is privileged, it has
the effect of lowering the penalty by one to two
degrees, depending on how the court will regard
the absence or presence of conditions to justify
the act.
9efense of property rights
"his can only be invo%ed if the life and limb of
the person ma%ing the defense is also the
subject of unlawful aggression. *ife cannot be
e8ual to property.
9efense of stranger
If the person being defended is already a
second cousin, you do not invo%e defense of
relative anymore. It will be defense of stranger.
"his is vital because if the person ma%ing the
defense acted out or revenge, resentment or
some evil motive in %illing the aggressor, he
cannot invo%e the justifying circumstance if the
relative defended is already a stranger in the
eyes of the law. )n the other hand, if the
relative defended is still within the coverage of
defense of relative, even though he acted out of
some evil motive, it would still apply. It is
enough that there was unlawful aggression
against the relative defended, and that the
person defending did not contribute to the
unlawful aggression.
uestion ! Answer
he person being defended was a
relative 0 a first cousin. ,ut the fellow who killed
the aggressor had some score to settle with the
aggressor. "s he entitled to a $ustifying
circumstance(
Mes. In law, the condition that a person
ma%ing the defense did not act out of revenge,
resentment or evil motive is not a re8uirement in
defense of relative. "his is only re8uired in
defense of strangers.
"ncomplete self=defense or incomplete $ustifying
circumstance or incomplete exempting
circumstances
$hen you say incomplete justifying
circumstance, it means that not all the re8uisites
to justify the act are present or not the re8uisites
to exempt from criminal liability are present.
How, if at all, may incomplete self#defense affect
the criminal liability of the offenderL
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If the 8uestion specifically refers to incomplete
self#defense, defense of relative or defense of
stranger, you have to 8ualify your answer.
&irst, to have incomplete self#defense, the
offended party must be guilty of unlawful
aggression. $ithout this, there can be no
incomplete self#defense, defense of relative, or
defense of stranger.
0econd, if only the element of unlawful
aggression is present, the other re8uisites being
absent, the offender shall be given only the
benefit of an ordinary mitigating circumstance.
"hird, if aside from the element of unlawful
aggression another re8uisite, but not all, are
present, the offender shall be given the benefit
of a privileged mitigating circumstance. In such
a case, the imposable penalty shall be reduced
by one or two degrees depending upon how the
court regards the importance of the re8uisites
present. )r absent.
If the 8uestion refers generally to justifying or
exempting circumstances, the 8uestion should
be, @how may incomplete justifying circumstance
affect criminal liability of the offender, if at allLA
:a%e a separate answer with respect to self#
defense, defense of relative or defense of
stranger because in these cases, you always
have to specify the element of unlawful
aggression7 otherwise, there would be no
incomplete self#defense, defense of relative or
defense of stranger. In general, with respect to
other circumstances, you need only to say thisD
If less than a majority of the re8uisites
necessary to justify the act or exempt from
criminal liability are present, the offender shall
only be entitled to an ordinary mitigating
circumstance.
If a majority of the re8uisites needed to justify
the act or exempt from criminal liability are
present, the offender shall be given the benefit
of a privileged mitigating circumstance. "he
penalty shall be lowered by one or two degrees.
$hen there are only two conditions to justify the
act or to exempt from criminal liability, the
presence of one shall be regarded as the
majority.
2tate of necessity
"he state of necessity must not have been
created by the one invo%ing the justifying
circumstances. &or example, drove his car
beyond the speed limit so much so that when he
reached the curve, his vehicle s%idded towards
a ravine. He swerved his car towards a house,
destroying it and %illing the occupant therein.
cannot be justified because the state of
necessity was brought about by his own
felonious act.
Civil liability referred to in a state of necessity is
based not on the act committed but on the
benefit derived from the state of necessity. 0o
the accused will not be civilly liable if he did not
receive any benefit out of the state of necessity.
)n the other hand, persons who did not
participate in the damage or injury would be pro
tanto civilly liable if they derived benefit out of
the state of necessity.
Civil liability is based on the benefit derived and
not on the act, damage or injury caused. It is
wrong to treat this as an exception to the rule
that in justifying circumstances, there is no
criminal nor civil liability, on the principle that @no
one should enrich himself at the expense of
anotherA.
IllustrationD
and 5 are owners of adjoining lands. owns
the land for planting certain crops. 5 owns the
land for raising certain goats. C used another
land for a vegetable garden. "here was heavy
rain and floods. <am was opened. C drove all
the goats of 5 to the land of . "he goats
rushed to the land of to be saved, but the land
of was destroyed. "he author of the act is C,
but C is not civilly liable because he did not
receive benefits. It was 5 who was benefited,
although he was not the actor. He cannot claim
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that it was fortuitous event. 5 will answer only
to the extent of the benefit derived by him. If C
who drove all the goats is accused of malicious
mischief, his defense would be that he acted out
of a state of necessity. He will not be civilly
liable.
8ulfillment of duty
In the justifying circumstance of a person having
acted out of fulfillment of a duty and the lawful
exercise of a right or office, there are only two
conditionsD
1/2 "he felony was committed while the
offender was in the fulfillment of a duty
or in the lawful exercise of a right or
office7 and
132 "he resulting felony is the unavoidable
conse8uence of the due fulfillment of the
duty or the lawful exercise of the right or
office.
Invariably, when you are given a problem on this
premise, and the first condition is present, but
the second is not because the offender acted
with culpa, the offender will be entitled to a
privelege mitigating circumstance. "his is what
you call incomplete justification of fulfillment of
duty or incomplete justification of exercise of a
right. In that case, the penalty would be
reduced by one or two degrees.
In #eople v. Oanis and Callanta, the accused
Chief of (olice and the constabulary soldier
were sent out to arrest a certain 5alagtas,
supposedly a notorious bandit. "here was an
order to %ill 5alagtas if he would resist. "he
accused arrived at the house of a dancer who
was supposedly the girlfriend of 5alagtas.
$hen they were there, they saw a certain
person who resembled 5alagtas in all his bodily
appearance sleeping on a bamboo bed but
facing the other direction. "he accused, without
going around the house, started firing at the
man. "hey found out later on that the man was
not really 5alagtas. "hey tried to invo%e the
justifying circumstance of having acted in
fulfillment of a duty.
"he second re8uisite is absent because they
acted with negligence. "here was nothing that
prevented them from loo%ing around the house
and loo%ing at the face of the fellow who was
sleeping. "here could not be any danger on
their life and limb. Hence, they were held guilty
of the crime of murder because the fellow was
%illed when he was sleeping and totally
defenseless. However, the 0upreme Court
granted them the benefit of incomplete
justification of fulfillment of duty and the penalty
was reduced by one or two degrees.
<o not confuse fulfillment of a duty with self#
defense.
IllustrationD
, a policeman, while waiting for his wife to go
home, was suddenly stabbed at the bac% by 5,
a hoodlum, who mistoo% him for someone else.
$hen saw 5, he drew his revolver and went
after 5. fter firing a shot in the air, 5 did not
stop so shot 5 who was hit at a vital part of
the body. 5 died. Is the act of justifiedL
Mes. "he justifying circumstance of self#defense
cannot be invo%ed because the unlawful
aggression had already ceased by the time
shot 5. $hen the unlawful aggressor started
fleeing, the unlawful aggression ceased. If the
person attac%ed runs after him, in the eyes of
the law, he becomes the unlawful aggressor.
0elf#defense cannot be invo%ed. Mou apply
paragraph = on fulfillment of duty. "he offender
was not only defending himself but was acting in
fulfillment of a duty, to bring the criminal to the
authorities. s long as he was not acting out of
malice when he fired at the fleeing criminal, he
cannot be made criminally liable. However, this
is true only if it was the person who stabbed was
the one %illed. 5ut if, let us say, the policeman
was stabbed and despite the fact that the
aggressor ran into a crowd of people, the
policeman still fired indiscriminately. "he
policeman would be held criminally liable
because he acted with imprudence in firing
toward several people where the offender had
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run. 5ut although he will be criminally liable, he
will be given the benefit of an incomplete
fulfillment of duty.
E4empting circumstances
In exempting circumstances, the reason for the
exemption lies on the involuntariness of the act
4 one or some of the ingredients of
voluntariness such as criminal intent,
intelligence, or freedom of action on the part of
the offender is missing. In case it is a culpable
felony, there is absence of freedom of action or
intelligence, or absence of negligence,
imprudence, lac% of foresight or lac% of s%ill.
"mbecility and insanity
"here is complete absence of intelligence.
Imbecile has an IB of C. "he intellectual
deficiency is permanent. "here is no lucid
interval unli%e in insanity.
"he insanity that is exempting is limited only to
mental aberration or disease of the mind and
must completely impair the intelligence of the
accused. .nder common law countries,
emotional or spiritual insanity are exempting
circumstances unli%e in this jurisdiction because
the +evised dministrative Code, as defined is
limited to mental aberration of the mind. "his
was the ruling in #eople v. 5uno.
In #eople v. 2a+anan, decided on 3ovember
21, 1991, the following are the two tests for
exemption on grounds of insanityD

1/2 "he test of cognition, or whether the
accused acted with complete deprivation
of intelligence in committing said crime7
and
132 "he test of volition, or whether the
accused acted in total deprivation of
freedom of will.
0chi'oprenia 1dementia praecox2 can only be
considered a mitigating circumstance because it
does not completely deprive the offender of
consciousness of his acts.
Minority
In exempting circumstances, the most important
issue is how the minority of the offender affected
his criminal liability. It seems that the view of
many is that when the offender is a youthful
offender, he must necessarily be confined in a
reformatory. "his is wrong. youthful offender
can only be confined in a reformatory upon
order of the court. .nder the amendment to
(residential <ecree !o. ,F-, (residential
<ecree !o. //C> re8uires that before a youthful
offender may be given the benefit if a
suspension of sentence, there must be an
application filed with the court which should
pronounce sentence. !ote that the commitment
of the offender in a reformatory is just a
conse8uence of the suspension of the sentence.
If the sentence is not suspended, there is no
commitment in a reformatory. "he commitment
is in a penitentiary, since suspension of
sentence re8uires certain conditionsD
1/2 "he crime committed should not be
punishable by reclusion perpetua or
death penalty7
132 "he offender should not have been given
the benefit of a suspended sentence
before. "his means he is a first timer7
1-2 He must be below /? years old because
a youthful offender is one who is below
/?.
!ote that the age of majority has been reduced
to /?. "here is no more brac%et where the
offender is a minor yet no longer entitled to a
mitigating circumstance. n offender below /?
is always entitled to a mitigating or exempting
circumstance.
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How does the minority of the offender affect his
criminal liabilityL
1/2 If the offender is within the brac%et of
nine years old exactly or less, he is
exempt from criminal liability but not from
civil liability. "his type of offenders are
absolutely exempt. Even if the offender
nine years or below acted with
discernment, this should not be ta%en
against him because in this age brac%et,
the exemption is absolute.
132 If over nine but below /=, a distinction
has to be made whether the offender
acted with or without discernment. "he
burden is upon the prosecution to prove
that the offender acted with discernment.
It is not for the minor to prove that he
acted without discernment. ll that the
minor has to show is that he is within the
age brac%et. If the prosecution would
want to pin criminal liability on him, it has
to prove that the crime was committed
with discernment. Here, if the offender
was exempt from criminal liability
because the prosecution was not able to
prove that the offender acted with
discernment, he is only civilly liable but
he will be committed to the surveillance
of his parents who will be re8uired to
report to the court periodically on the
progress or development of the offender.
If the offender is proven to have acted
with discernment, this is where the court
may give him the benefit of a suspended
sentence. He may be given the benefit
of a suspended sentence under the
conditions mentioned earlier and only if
he would file an application therefor.
0uspension of sentence is not automatic. If the
youthful offender has filed an application
therefor.
1-2 If at the time the judgment is to be
promulgated he is already above /?, he
cannot avail of a suspended sentence.
"he reason is because if the sentence
were to be suspended, he would be
committed in a reformatory. 0ince he
cannot be committed to a reformatory
anymore because he is not less than /?
years old, he would have to be
committed to a penitentiary. "hat means
promulgation of the sentence shall not
be suspended. If the sentence should
not be suspended, although the minor
may be 8ualified, the court will
promulgate the sentence but the minor
shall be entitled to the reduction of the
penalty by at least two degrees.
$hen the offender is over nine but below
/=, the penalty to be imposed is
discretionary on the court, but lowered
by at least two degrees. It may be
lowered by three or four degrees,
depending upon whether the court
deems best for the interest of the
offender. "he limitation that it should be
lowered by at least two degrees is just a
limitation on the power of the court to
reduce the penalty. It cannot be less
than two degrees.
192 If the offender is /= years old and above
but below /?, there is no exemption
anymore but he is also given the benefit
of a suspended sentence under the
conditions stated earlier and if at the
time the sentence is promulgated, he is
not /? years old or over yet. If the
sentence is promulgated, the court will
impose a penalty one degree lower. "his
time it is fixed. It is to be imposed one
degree lower and in the proper periods
subject to the rules in rticle ,9.
9amnum abs*ue in$uria
.nder rticle /3, paragraph 9, the offender is
exempt not only from criminal but also from civil
liability. "his paragraph embodies the *atin
maxim @damnum abs8ue injuriaA.
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IllustrationD
person who is driving his car within the speed
limit, while considering the condition of the traffic
and the pedestrians at that time, tripped on a
stone with one of his car tires. "he stone flew
hitting a pedestrian on the head. "he
pedestrian suffered profuse bleeding. $hat is
the liability of the driverL
"here is no civil liability under paragraph 9 of
rticle /3. lthough, this is just an exempting
circumstance, where generally there is civil
liability, yet, in paragraph 9 of rticle /3, there is
no civil liability as well as criminal liability. "he
driver is not under obligation to defray the
medical expenses.
However, correlate paragraph 9 of rticle /3
with the second paragraph of rticle 3C=. rticle
3C= gives you the crime of abandoning the
victim of one’s own accident. It is a crime.
Here, the accident referred to in paragraph 3 of
rticle 3C= is in the concept of paragraph 9 of
rticle /3. "his means that the offender must
be performing a lawful act, that he was doing it
with due care but somehow, injury resulted by
mere accident without fault or intention of
causing it.
If at the very beginning, the offender was
negligent, you do not apply rticle 3C=,
paragraph 3. Instead, it will be rticle -,= on
criminal negligence. !otice that in the last
paragraph of rticle -,=, in the case of the so#
called hit and run drivers who have injured
somebody and would abandon the victim of the
accident, the penalty is 8ualified to a higher
degree. Here, under paragraph 9 of rticle /3,
the infliction of the injury by mere accident does
not give rise to a criminal or civil liability, but the
person who caused the injury is duty bound to
attend to the person who was injured. If he
would abandon him, it is in that abandonment
that the crime arises which is punished under
the second paragraph of rticle 3C=.
Compulsion of irresisti)le force an# un#er
the impulse of an uncontrolla)le fear
"he offender must be totally deprived of
freedom. If the offender has still freedom of
choice, whether to act or not, even if force was
employed on him or even if he is suffering from
uncontrollable fear, he is not exempt from
criminal liability because he is still possessed
with voluntariness. In exempting circumstances,
the offender must act without voluntariness.
In a situation where the offender would
otherwise be exempt, but the re8uisites for
exemption are not all present, the offender is
still entitled to a mitigating circumstance of
incomplete exemption under paragraph / of
rticle /-. pply the rule if majority of the
re8uisites to exempt from criminal liability are
present. "he offender shall be given the benefit
of privelege mitigating circumstances. "hat
means that the penalty prescribed of the crime
committed shall be reduced by one or two
degrees in accordance with rticle ,> of the
+evised (enal Code. If less than a majority of
the re8uisites for exemption are present, the
offender shall be given only the benefit of
ordinary mitigating circumstances. "hat means
the penalty shall be reduced to the minimum
period of the prescribed penalty, unless the
mitigating circumstance is offset by an
aggravating circumstance.
Mitigating circumstances
<istinctions between ordinary mitigating
circumstances and privileged mitigating
circumstances
1/2 s to the nature of the circumstances
)rdinary mitigating circumstances can
be offset by aggravating circumstances.
(rivilege mitigating circumstance can
never be offset by any aggravating
circumstance.
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132 s to effect
)rdinary mitigating circumstances, if not
offset, will operate to reduce the penalty
to the minimum period, provided the
penalty is a divisible one.
(rivilege mitigating circumstances
operate to reduce the penalty by one or
two degrees, depending upon what the
law provides.
Mou can easily detect whether the circumstance
which mitigates the liability of the offender is
privilege or not, that is, if the penalty is reduced
by degree. If the penalty is lowered by one or
two degrees, it is privilege7 therefore, even if
there is an aggravating circumstance, do not
compensate because that would be violating the
rules.
"he circumstances under rticle /- are
generally ordinary mitigating, except in
paragraph /, where it is privilege, rticle ,>
would apply. 0o also, paragraph 3, in cases
where the offender is below /? years old, such
an offender if criminally liable is entitled to the
lowering of penalty by one degree. 5ut if over
nine but under /=, he is entitled to a
discretionary penalty of at least two degrees
lower. $hen there is a lowering of penalties by
degrees, it is a privilege. It cannot be offset by
an aggravating circumstance.
lthough the bul% of the circumstances in rticle
/- are ordinary mitigating circumstances, yet,
when the crime committed is punishable by a
divisible penalty, two or more of this ordinary
mitigating circumstances shall have the effect of
a privilege mitigating circumstances if there is
no aggravating circumstance at all.
Correlate rticle /- with rticles ,- and ,9.
rticle /- is meaningless without %nowing the
rules of imposing the penalties under rticles ,-
and ,9.
In bar problems, when you are given
indeterminate sentences, these articles are very
important.
$hen the circumstance which mitigates criminal
liability is privileged, you give effect to it above
all considerations. In other words, before you
go into any circumstance, lower first the penalty
to the proper degree. "hat is precisely why this
circumstance is considered privileged. It ta%es
preference over all other circumstances.
uestion ! Answer
+ 1I year old boy committed parricide.
-ill he be given the benefit of "ndeterminate
2entence &aw( hen% the facts state% penalty
for parricide is reclusion perpetua to death.
Mou have learned that the Indeterminate
0entence *aw does not apply, among other
situations, when the penalty imposed is death or
life imprisonment. 5ut then in the problem
given, the offender is a /C#year old boy. "hat
circumstance is privileged. 0o before you go in
the Indeterminate 0entence *aw, you have to
apply that circumstance first. 5eing a /C#year
old boy, therefore, the penalty would go one
degree lower and the penalty for parricide which
now stands at reclusion perpetua will go down
to reclusion temporal. +eclusion temporal is
already governed by the Indeterminate
0entence *aw.
"he answer, therefore, is yes. He shall
be given the benefit of the Indeterminate
0entence *aw. lthough the penalty prescribed
for the crime committed is reclusion perpetua,
that is not the imposable penalty, since being /C
years old is a privilege mitigating circumstance.
"hat privilege lowers the penalty by one degree.
"he imposable penalty, therefore, is reclusion
temporal. "he Indeterminate 0entence *aw
applies to this and so the offender will be given
its benefit.
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Criminal laws are to be construed always
in a manner liberal or lenient to the offender.
5etween giving the offender the benefit of the
Indeterminate 0entence *aw and withholding it
away from him, there is more reason to give him
its benefit. It is wrong for you to determine
whether the Indeterminate 0entence *aw will
apply or not on the basis of reclusion perpetua
because that is not the imposable penalty. "he
moment you do that, you disregard the
privileged character of minority. Mou are only
treating it as an ordinary mitigating
circumstance. (rivilege mitigating circumstance
will apply over and above all other
considerations. $hen you arrive at the correct
penalty, that is the time when you find out
whether the Indeterminate 0entence *aw will
apply or not.
&or purposes of lowering the penalty by one or
two degrees, the age of the offender at the time
of the commission of the crime shall be the
basis, not the age of the offender at the time the
sentence is to be imposed. 5ut for purposes of
suspension of the sentence, the age of the
offender at the time the crime was committed is
not considered, it is the age of the offender at
the time the sentence is to be promulgated.
!raeter intentionem
"he common circumstance given in the bar of
praeter intentionem, under paragraph -, means
that there must be a notable disproportion
between the means employed by the offender
compared to that of the resulting felony. If the
resulting felony could be expected from the
means employed, this circumstance does not
avail. "his circumstance does not apply when
the crime results from criminal negligence or
culpa. $hen the crime is the product of
rec%less imprudence or simple negligence,
mitigating circumstances does not apply. "his is
one of the three instances where the offender
has performed a felony different from that which
he intended. "herefore, this is the product of
intentional felony, not a culpable one.
2ufficient threat or provocation
"his is mitigating only if the crime was
committed on the very person who made the
threat or provocation. "he common set#up
given in a bar problem is that of provocation was
given by somebody. "he person provo%ed
cannot retaliate against him7 thus, the person
provo%ed retaliated on a younger brother or on
an elder father. lthough in fact, there is
sufficient provocation, it is not mitigating
because the one who gives the provocation is
not the one against whom the crime was
committed.
uestion ! Answer
+ was walking in front of the house of ,.
, at that time was with his brother ). ) told ,
that sometime in the past% + boxed him% and
because he was small% he did not fight back. ,
approached + and boxed him% but + cannot hit
back at , because , is bigger% so + boxed ).
)an + invoke sufficient provocation to mitigate
criminal liability(
!o. 0ufficient provocation must come
from the offended party. "here may actually be
sufficient provocation which immediately
preceded the act, but if provocation did not
come from the person offended, paragraph 9,
rticle /- will not apply.
"he commission of the felony must be
immediate to the threat or provocation in order
that this circumstance be mitigating. If there is
sufficient brea% of time before the provocation or
threat and the conse8uent commission of the
crime, the law presupposes that during that
interval, whatever anger or diminished self
control may have emerged from the offender
had already vanished or disappeared. In
applying this mitigating circumstance, the courts
are generally considering that there must be no
brea% between the provocation or threat and the
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commission of the felony. In other words, the
felony was committed precisely because he was
then and there provo%ed.

However, the recent rulings of the 0upreme
Court, as well as the Court of ppeals, has
stretched this criterion 4 it is not only a matter of
time anymore. 5efore, there was a ruling that if
a period of one hour had lapsed between the
provocation and the commission of the felony,
this mitigating circumstance is no longer
applicable.
IllustrationD
"he accused went to a barrio dance. In that
gathering, there was a bully and he told the
accused that he is not allowed to go inside. "he
accused tried to reason out but the bully
slapped him several times in front of so many
people, some of whom were ladies who were
being courted by the accused, so he was
humiliated and embarrassed. However, he
cannot fight the bully at that time because the
latter was much bigger and heavier. ccused
had no choice but to go home. $hen he saw the
bully again, this time, he was armed with a %nife
and he stabbed the bully to death. "he
evidence for the accused showed that when he
went home, he was not able to sleep throughout
the night, thin%ing of the humiliation and outrage
done to him, despite the lapse of about 33
hours. "he 0upreme Court gave him the benefit
of this mitigating circumstance. "he reason
stated by the 0upreme Court for allowing the
accused to be benefited by this mitigating
circumstance is that the effect of the humiliation
and outrage emitted by the offended party as a
provocation upon the accused was still present
when he committed the crime and, therefore,
the reason for paragraph 9 still applies. "he
accused was still acting under a diminished self
control because he was thin%ing of the
humiliation he suffered in the hands of the
offended party. "he outrage was so serious
unless vindicated.
"his is the correct interpretation of paragraph 9,
rticle /-. s long as the offender at the time he
committed the felony was still under the
influence of the outrage caused by the
provocation or threat, he is acting under a
diminished self control. "his is the reason why it
is mitigating.
Mou have to loo% at two criteriaD
1/2 If from the element of time, there is a
material lapse of time stated in the
problem and there is nothing stated in
the problem that the effect of the threat
or provocation had prolonged and
affected the offender at the time he
committed the crime, then you use the
criterion based on the time element.
132 However, if there is that time element
and at the same time, facts are given
indicating that at the time the offender
committed the crime, he is still suffering
from outrage of the threat or provocation
done to him, then he will still get the
benefit of this mitigating circumstance.
In #eople v. 5io9no, a Chinaman eloped with a
woman. ctually, it was almost three days
before accused was able to locate the house
where the Chinaman brought the woman. Here,
sufficient provocation was one of the mitigating
circumstances considered by the 0upreme
Court in favor of the accused.
5indication of a grave offense
"he word @offenseA should not be ta%en as a
crime. It is enough if what was imputed or what
was done was wrong. In considering whether
the wrong is a grave one upon the person who
committed the crime, his age, education and
social status will be considered.
Here, in vindication of a grave offense, the
vindication need not be done by the person
upon whom the grave offense was committed.
0o, unli%e in sufficient threat or provocation
where the crime should be inflicted upon the
very person who made the threat or
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provocation, here, it need not be the same
person who committed the grave offense or who
was offended by the wrong done by the
offended party.
"he word @immediateA here does not carry the
same meaning as that under paragraph 9. "he
word @immediateA here is an erroneous 0panish
translation because the 0panish word is
@proximaA and not @immediatementa.A "herefore,
it is enough that the offender committed the
crime with the grave offense done to him, his
spouse, his ascendant or descendant or to his
brother or sister, whether natural, adopted or
legitimate and that is the proximate cause of the
commission of the crime.
!assion or obfuscation
"his stands on the premise or proposition that
the offender is suffering from a diminished self
control because of the passion or obfuscation.
"he same is true with the circumstances under
paragraphs 9 and =. 0o, there is a ruling to the
effect that if the offender is given the benefit of
paragraph 9, he cannot be given the benefit of
paragraph = or ,, or vice#versa. )nly one of the
three mitigating circumstances should be given
in favor of the offender.
However, in one case, one of the mitigating
circumstances under paragraphs 9, = and ,
stands or arises from a set of facts, and another
mitigating circumstance arises from another set
of facts. 0ince they are predicated on different
set of facts, they may be appreciated together,
although they arose from one and the same
case. Hence, the prohibition against considering
all these mitigating circumstances together and
not as one applies only if they would be ta%en
on the basis of the same set of facts.
If the case involves a series of facts, then you
can predicate any one of these circumstances
on one fact and the other on another fact and so
on.
"he passion must be legitimate. s a rule, it
cannot be based on common law relationship
because common law relationships are illicit.
However, consider whether passion or
obfuscation is generated by common law
relationship or by some other human
consideration.
In a case where the relationship between the
accused and the woman he was living with was
one of common law, he came home and
surprised his common law wife having sexual
intercourse with a friend. "his infuriated him. He
%illed the friend and he claimed passion or
obfuscation. "he trial court denied his claim
because the relationship was a common law
one.
)n review, the accused was given the benefit of
the circumstances and the basis of considering
passion or obfuscation in favor of the accused
was the act of the common law wife in
committing adultery right from the conjugal bed.
$hether or not they are married, any man who
discovers that infidelity was committed on the
very bed provided by him to the woman would
naturally be subjected to obfuscation.
$hen a married person surprised his better half
in the act of sexual intercourse with another, he
gets the benefit of rticle 39C. However, that
re8uisite which in the first place, the offender
must have surprised hisHher spouse actually
committing sexual intercourse should be
present. If the surprising was done not in the
actual act of sexual intercourse but before or
after it, then rticle 39C does not apply.
lthough this is the ruling, still, the accused will
be given the benefit of sufficient provocation if
the intercourse was done in his dwelling. If this
act was done somewhere else and the accused
%ills the paramour or the spouse, this may be
considered as mitigation of a grave offense to
him or otherwise as a situation sufficient to
create passion or obfuscation. "herefore, when
a married man upon coming home, surprises his
wife who was nude and lying with another man
who was also nude, rticle 39C does not apply.
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If he %ills them, vindication of a grave offense
will be mitigating in favor of the offender.
Illustrations7
is courting 5, a receptionist in a beerhouse. C
danced with 5. saw this and stabbed C. It
was held that jealousy is an ac%nowledged
basis of passion.
, a male classmate is escorting 5, a female
classmate. )n the way out, some men whistled
lustfully. "he male classmate stabbed said
men. "his was held to be obfuscation.
$hen a man saw a woman bathing, almost
na%ed, for which reason he raped her, such man
cannot claim passion as a mitigating
circumstance.
man and a woman were living together for /=
years. "he man left the village where they were
living and never returned home. "he common
law wife learned that he was getting married to a
classmate. )n the scheduled wedding day, she
stabbed the groom in the chest, instantly %illing
him. 0he confessed and explained that any
woman cannot tolerate what he did to her. 0he
gave him the best years of her life. 0he
practically waited for him day and night. It was
held that passion and obfuscation were
considered mitigating. Ingratitude was shown
here.
5oluntary surrender
"he essence of voluntary surrender re8uires
that the offender, after having committed the
crime, had evaded the law enforcers and the
law enforcers do not %now of his whereabouts.
In short, he continues to elude arrest. If, under
this circumstance, the offender would come out
in the open and he gives himself up, his act of
doing so will be considered as indicative of
repentance and he also saves the government
the time and the expense of loo%ing for him.
s a general rule, if after committing the crime,
the offender did not flee and he went with the
responding law enforcers mee%ly, voluntary
surrender is not applicable.
However, there is a ruling that if after committing
the crime, the offender did not flee and instead
waited for the law enforcers to arrive and he
surrendered the weapon he used in %illing the
victim, the ruling was that voluntary surrender is
mitigating. In this case, the offender had the
opportunity to go into hiding, the fact that he did
not flee is not voluntary surrender.
However, if he comes out from hiding because
he is seriously ill and he went to get medical
treatment, the surrender is not considered as
indicative of remorse or repentance. "he
surrender here is only done out of convenience
to save his own self. Hence, it is not mitigating.
Even if the offender may have gone into hiding,
if the law enforcers had already %nown where he
is hiding and it is just a matter of time before he
is flushed out of that place, then even if the law
enforcers do not %now exactly where he was
hiding and he would come out, this is not
voluntary surrender.
$hether or not a warrant of arrest had been
issued against the offender is immaterial and
irrelevant. "he criterion is whether or not the
offender had gone into hiding or had the
opportunity to go into hiding and the law
enforcers do not %now of his whereabouts. If he
would give up, his act of surrendering under
such circumstance indicates that he is willing to
accept the conse8uences of the wrong he has
done and also thereby saves the government
the effort, the time and the expenses to be
incurred in loo%ing for him.
$here the offender went to the municipal
building not to own responsibility for the %illing,
such fact is not tantamount to voluntary
surrender as a mitigating circumstance.
lthough he admitted his participation in the
%illing, he tried to avoid responsibility by
claiming self#defense which however he was not
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able to prove. #eople v. Mindac, decided
5ecember 11, 1992.
0urrender to be considered voluntary and thus
mitigating, must be spontaneous, demonstrating
an intent to submit himself unconditionally to the
person in authority or his agent in authority,
because 1/2 he ac%nowledges his guilt 132 he
wishes to save the government the trouble and
expenses of searching and capturing him.
$here the reason for the surrender of the
accused was to insure his safety, his arrest by
policemen pursuing him being inevitable, the
surrender is not spontaneous.
!hysical defect
"he physical defect that a person may have
must have a relation to the commission of the
crime. In a case where the offender is deaf and
dumb, personal property was entrusted to him
and he misappropriated the same. "he crime
committed was estafa. "he fact that he was deaf
and dumb is not mitigating because that does
not bear any relation to the crime committed.
!ot any physical defect will affect the crime. It
will only do so if it has some relation to the crime
committed. If a person is deaf and dumb and he
has been slandered, he cannot tal% so what he
did was, he got a piece of wood and struc% the
fellow on the head. "he crime committed was
physical injuries. "he 0upreme Court held that
being a deaf and dumb is mitigating because
the only way is to use his force because he
cannot stri%e bac%.
If the offender is blind in one eye, as long as his
means of action, defense or communication with
others are not restricted, such circumstance is
not mitigating. "his circumstance must also
have a bearing on the crime committed and
must depend on how the crime was committed.
+nalogous cases
"he act of the offender of leading the law
enforcers to the place where he buried the
instrument of the crime has been considered as
e8uivalent to voluntary surrender. "he act of a
thief in leading the authorities to the place where
he disposed of the loot has been considered as
analogous or e8uivalent to voluntary surrender.
0tealing by a person who is driven to do so out
of extreme poverty is considered as analogous
to incomplete state of necessity. However, this
is not so where the offender became
impoverished because of his own way of living
his life. If his lifestyle is one of having so many
vices, as a result of which he became poor, his
subse8uent stealing because of his poverty will
not be considered mitigated by incomplete state
of necessity.
Aggra'ating circumstances
Iinds of aggravating circumstancesD
1/2 Generic or those that can generally
apply to all crime7
132 0pecific or those that apply only to a
particular crime7
1-2 Bualifying or those that change the
nature of the crime7
192 Inherent or those that must of necessity
accompany the commission of the crime.
"he aggravating circumstances must be
established with moral certainty, with the same
degree of proof re8uired to establish the crime
itself.
:ost important of the classification of
aggravating circumstances are the 8ualifying
and the generic aggravating circumstances.
In practice, the so#called generic aggravating
circumstances are referred to simply as
aggravating circumstances. "he so#called
8ualifying aggravating circumstances are simply
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referred to as 8ualifying circumstances. "his is
so because there is no 8ualifying circumstance
that is not aggravating. "o say 8ualifying
aggravating circumstance is redundant. In the
examination, if you find 8ualifying
circumstances, you have to thin% about these as
aggravating circumstances which are the
ingredients of the crime.
,istinctions )etween aggra'ating an#
8ualif(ing circumstances7
In aggravating circumstances 4
1/2 "he circumstance can be offset by an
ordinary mitigating circumstance7
132 !o need to allege this circumstance in
the information, as long as it is proven
during trial. If it is proved during trial, the
court would consider the same in
imposing the penalty7
1-2 It is not an ingredient of a crime. It only
affects the penalty to be imposed but the
crime remains the same.
In 8ualifying circumstance 4
1/2 "he circumstance affects the nature of
the crime itself such that the offender
shall be liable for a more serious crime.
"he circumstance is actually an
ingredient of the crime7
132 5eing an ingredient of the crime, it
cannot be offset by any mitigating
circumstance7
1-2 Bualifying circumstances to be
appreciated as such must be specifically
alleged in the complaint or information. If
not alleged but proven during the trial, it
will be considered only as generic
aggravating circumstance. If this
happens, they are susceptible of being
offset by a mitigating circumstance.
n aggravating circumstance is 8ualifying when
it is an ingredient of the crime. "herefore it is
included in the provision of law defining the
crime. If it is not so included, it is not 8ualifying.
In rticle 39?, in the crime of murder, the law
specifically mentions thereunder several
circumstances which are aggravating under
rticle /9. ll of these will 8ualify a %illing from
homicide to murder7 however, you understand
that only one is 8ualifying.
If let us say, the accused was charged with
murder. "hree of these circumstancesD
treachery, evident premeditation and act was
done in consideration of a price, reward or
promise were alleged as aggravating. )nly one
of these is 8ualifying. If any one of the three
circumstances was proven, the crime was
already murder. If the other two are also
proven, even if they are alleged in the
information or complaint, they are only to be
ta%en as generic. If there is any mitigating
circumstance in favor of the offender, the two
other circumstances which are otherwise
8ualifying could be offset by the mitigating,
provided the mitigating circumstance is not a
privileged mitigating circumstance. "herefore,
if there are three of the 8ualifying circumstances
alleged in the complaint or information, only one
will 8ualify the crime. "he others will merely be
considered as generic. "hus, if there is any
ordinary mitigating circumstance in favor of the
accused, such will be wiped out by these
circumstances, although initially they are
considered as 8ualifying. <o not hesitate to
offset on the principle that a 8ualifying
circumstance cannot be offset by an ordinary
mitigating circumstance because only one is
necessary.
Even if any of the 8ualifying circumstances
under rticle 39? on murder was proven, if that
is not the circumstance alleged in the
information, it cannot 8ualify the crime. *et us
say, what was alleged in the information was
treachery. <uring the trial, what was proven
was the price, reward or promise as a
consideration for %illing. "he treachery was not
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proved. ;ust the same, the accused cannot be
convicted of murder because the circumstance
proven is not 8ualifying but merely generic. It is
generic because it is not alleged in the
information at all. If any of these 8ualifying
circumstances is not alleged in the information,
it cannot be considered 8ualifying because a
8ualifying is an ingredient of the crime and it
cannot be ta%en as such without having alleged
in the information because it will violate the right
of the accused to be informed of the nature of
the accusation against him.
Correlate rticle /9 with rticle ,3. rticle ,3
gives you the different rules regarding
aggravating circumstances. ggravating
circumstances will not be considered when it is
the crime itself. If the crime charged is 8ualified
trespass to dwelling, dwelling is no longer
aggravating. $hen the aggravating
circumstance refers to the material execution of
the crime, li%e treachery, it will only aggravate
the criminal liability of those who employed the
same.
Illustration7
person induced another to %ill somebody. "hat
fellow %illed the other guy and employed
treachery. s far as the %illing is concerned, the
treachery will 8ualify only the criminal liability of
the actual executioner. "he fellow who induced
him becomes a co#principal and therefore, he is
liable for the same crime committed. However,
let us say, the fellow was hired to %ill the parent
of the one who hired him. He %illed a stranger
and not the parent. $hat was committed is
different from what was agreed upon. "he fellow
who hired him will not be liable for the crime he
had done because that was not the crime he
was hired to commit.
aking advantage of public position
rticle ,3 was also amended by the +epublic
ct !o. C,=>. "he legal import of this
amendment is that the subject circumstance has
been made a 8ualifying or special aggravating
that shall not be offset or compensated by a
mitigating circumstance. If not alleged in the
information, however, but proven during the trial,
it is only appreciated as a generic aggravating
circumstance.
"he mitigating circumstance referred to in the
amendment as not affecting the imposition of
the penalty in the maximum are only ordinary
mitigating circumstances. (rivileged mitigating
circumstances always lower the penalty
accordingly.
9isrespect due to rank% age% sex
ggravating only in crimes against persons and
honor, not against property li%e +obbery with
homicide 1#eople v. /a, 10" $C2A :972.
"eachers, professors, supervisors of public and
duly recogni'ed private schools, colleges and
universities, as well as lawyers are persons in
authority only for purposes of direct assault and
simple resistance, but not for purposes of
aggravating circumstances in paragraph 3,
rticle /9. 1#eople v. Taoan, 182 $C2A "712.
+buse of confidence
<o not confuse this with mere betrayal of trust.
"his is aggravating only when the very offended
party is the one who reposed the confidence. If
the confidence is reposed by another, the
offended party is different from the fellow who
reposed the confidence and abuse of
confidence in this case is not aggravating.
IllustrationsD
mother left her young daughter with the
accused because she had nobody to leave the
child with while she had to go on an errand.
"he accused abused the child. It was held that
the abuse of confidence is not aggravating.
$hat is present is betrayal of trust and that is
not aggravating.
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In a case where the offender is a servant, the
offended party is one of the members of the
family. "he servant poisoned the child. It was
held that abuse of confidence is aggravating.
"his is only true however, if the servant was still
in the service of the family when he did the
%illing. If he was driven by the master already
out of the house for some time and he came
bac% and poisoned the child, abuse of
confidence is no longer aggravating. "he reason
is because that confidence has already been
terminated when the offender was driven out of
the house.
9welling
<welling will only be aggravating if it is the
dwelling of the offended party. It should also not
be the dwelling of the offender. If the dwelling is
both that of the offended party and the offender,
dwelling is not aggravating.
<welling need not be owned by the offended
party. It is enough that he used the place for his
peace of mind, rest, comfort and privacy. "he
rule that dwelling, in order to be aggravating
must be owned by the offended party is no
longer absolute. <welling can be aggravating
even if it is not owned by the offended party,
provided that the offended party is considered a
member of the family who owns the dwelling
and e8ually enjoys peace of mind, privacy and
comfort.
Illustration7
Husband and wife 8uarreled. Husband inflicted
physical violence upon the wife. "he wife left the
conjugal home and went to the house of her
sister bringing her personal belongings with her.
"he sister accommodated the wife in the
formers home. "he husband went to the house
of the sister#in#law and tried to persuade the
wife to come bac% to the conjugal home but the
wife refused because she is more at peace in
her sisterOs house than in the conjugal abode.
<ue to the wifeOs refusal to go bac% to the
conjugal home and live with the husband, the
husband pulled out a %nife and stabbed the wife
which caused her death. It was held that
dwelling was aggravating although it is not
owned by the offended party because the
offended party is considered as a member of the
family who owns the dwelling and that dwelling
is where she enjoyed privacy. (eace of mind
and comfort.
Even a room in a hotel if rented as a dwelling,
li%e what the salesmen do when they are
assigned in the provinces and they rent rooms,
is considered a dwelling. room in a hotel or
motel will be considered dwelling if it is used
with a certain degree of permanence, where the
offended party see%s privacy, rest, peace of
mind and comfort.
If a young man brought a woman in a motel for
a short time and there he was %illed, dwelling is
not aggravating.
man was %illed in the house of his common
law wife. <welling is aggravating in this case
because the house was provided by the man.
<welling should not be understood in the
concept of a domicile. person has more than
one dwelling. 0o, if a man has so many wives
and he gave them a places of their own, each
one is his own dwelling. If he is %illed there,
dwelling will be aggravating, provided that he
also stays there once in a while. $hen he is
only a visitor there, dwelling is not aggravating.
"he crime of adultery was committed. <welling
was considered aggravating on the part of the
paramour. "he paramour is not a resident of the
same dwelling. However, if the paramour was
also residing on the same dwelling, dwelling is
not considered aggravating.
"he term @dwellingA includes all the
dependencies necessary for a house or for rest
or for comfort or a place of privacy. If the place
used is on the second floor, the stairs which are
used to reach the second floor is considered a
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dwelling because the second floor cannot be
enjoyed without the stairs. If the offended party
was assaulted while on the stairs, dwelling is
already aggravating. &or this reason,
considering that any dependency necessary for
the enjoyment of a place of abode is considered
a dwelling.
IllustrationsD
and 5 are living in one house. occupies the
ground floor while 5 the upper floor. "he stairs
here would form part only of 5Os dwelling, the
same being necessary and an integral part of
his house or dwelling. Hence, when an attac% is
made while is on the stairs, the aggravating
circumstance of dwelling is not present. If the
attac% is made while 5 was on the stairs, then
the aggravating circumstance of dwelling is
present.
-henever one is in his dwelling% the law is
presuming that he is not intending to commit a
wrong so one who attac%s him while in the
tran8uility of his home shows a degree of
perversity in him. Hence, this aggravating
circumstance.
<welling is not limited to the house proper. ll
the appurtenances necessary for the peace and
comfort, rest and peace of mind in the abode of
the offended party is considered a dwelling.
IllustrationsD
man was fixing something on the roof of his
house when he was shot. It was held that
dwelling is aggravating. +oof still part of the
house.
In the provinces where the comfort rooms are
usually far from the house proper, if the
offended party while answering the call of nature
is %illed, then dwelling is aggravating because
the comfort room is a necessary dependency of
the house proper.
person while in the room of his house,
maintaining the room, was shot. <welling is
aggravating.
If the offender entered the house and the
offended party jumped out of the house, even if
the offender caught up with him already out of
the house, dwelling is still aggravating. "he
reason is because he could not have left his
dwelling were it not for the fact that the attac%er
entered the house.
If the offended party was inside the house and
the offender was outside and the latter shot the
former inside the house while he was still
outside. <welling is still aggravating even if the
offender did not enter the house.
garage is part of the dwelling when connected
with an interior passage to the house proper. If
not connected, it is not considered part of the
dwelling.
)ne#half of the house is used as a store and the
other half is used for dwelling but there is only
one entrance. If the dwelling portion is attac%ed,
dwelling is not aggravating because whenever a
store is open for business, it is a public place
and as such is not capable of being the subject
of trespass. If the dwelling portion is attac%ed
where even if the store is open, there is another
separate entrance to the portion used for
dwelling, the circumstance is aggravating.
However, in case the store is closed, dwelling is
aggravating since here, the store is not a public
place as in the first case.
5alcony is part of the dwelling because it is
appurtenant to the house
<welling is aggravating in robbery with homicide
because the crime can be committed without
necessarily transgressing the sanctity of the
home 1#eople v. 5e 8os 2e'es, decided
October 22, 19922.
<welling is aggravating where the place is, even
for a brief moment, a @homeA, although he is not
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the owner thereof as when victim was shot in
the house of his parents.
,and
In band, there should at least be four persons.
ll of them should be armed. Even if there are
four, but only three or less are armed, it is not a
band. $henever you tal% of band, always have
in mind four at least. <o not say three or more
because it is four or more. "he way the law
defines a band is somewhat confusing because
it refers simply to more than -, when actually it
should be 9 or more.
Correlate this with rticle -F, # 5rigandage.
"he crime is the band itself. "he mere forming
of a band even without the commission of a
crime is already a crime so that band is not
aggravating in brigandage because the band
itself is the way to commit brigandage.
However, where brigandage is actually
committed, band becomes aggravating.
Hninhabited place
It is determined not by the distance of the
nearest house to the scene of the crime but
whether or not in the place of the commission of
the offense , there was a reasonable possibility
of the victim receiving some help.
Illustration7
is on board a banca, not so far away. 5 and C
also are on board on their respective bancas.
0uddenly, < showed up from underwater and
stabbed 5. Is there an aggravating circumstance
of uninhabited place hereL Mes, considering the
fact that and C before being able to give
assistance still have to jump into the water and
swim towards 5 and the time it would ta%e them
to do that, the chances of 5 receiving some help
was very little, despite the fact that there were
other persons not so far from the scene.
Evidence tending to prove that the offender too%
advantage of the place and purposely availed of
it is to ma%e it easier to commit the crime, shall
be necessary.
6ighttime
$hat if the crime started during the daytime and
continued all the way to nighttimeL "his is not
aggravating.
s a rule, the crime must begin and end during
the nighttime. Crime began at day and ended at
night, as well as crime began at night and ended
at day is not aggravated by the circumstance of
nighttime.
<ar%ness is what ma%es this circumstance
aggravating.
Illustration7
)ne evening, a crime was committed near the
lamp post. "he 0upreme Court held that there
is no aggravating circumstance of nighttime.
Even if the crime was committed at night, but
there was light, hence, dar%ness was not
present, no aggravating circumstance just by
the fact of nighttime alone.
Even if there was dar%ness but the nighttime
was only an incident of a chance meeting, there
is no aggravating circumstance here. It must be
shown that the offender deliberately sought the
cover of dar%ness and the offender purposely
too% advantage of nighttime to facilitate the
commission of the offense.
!octurnity is the period of time after sunset to
sunrise, from dus% to dawn.
,ifferent forms of repetition or ha)itualit( of
the offen#er
1/2 +ecidivism under rticle /9 1>2 4 "he
offender at the time of his trial for one
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crime shall have been previously
convicted by final judgment of another
embraced in the same title of the
+evised (enal Code.
132 +epetition or reiteracion under rticle /9
1/F2 4 "he offender has been previously
punished for an offense which the law
attaches an e8ual or greater penalty or
for two or more crimes to which it
attaches a lighter penalty.
1-2 Habitual delin8uency under rticle ,3 1=2
4 "he offender within the period of /F
years from the date of his release or last
conviction of the crimes of serious or
less serious physical injuries, robo,
hurto, estafa or falsification, is found
guilty of the any of said crimes a third
time or oftener.
192 Buasi#recidivism under rticle /,F 4 ny
person who shall commit a felony after
having been convicted by final judgment
before beginning to serve such sentence
or while serving such sentence shall be
punished by the maximum period
prescribed by law for the new felony.
,istinctions )etween reci#i'ism an# ha)itual
#elin8uenc(
In recidivism 4
1/2 "wo convictions are enough.
'() !he crimes are not specifed* it is
enough that they may be embraced
under the same title of the +evised
,enal -ode.
1-2 "here is no time limit between the first
conviction and the subse8uent
conviction. +ecidivism is imprescriptible.
192 It is a generic aggravating circumstance
which can be offset by an ordinary
mitigating circumstance. If not offset, it
would only increase the penalty
prescribed by law for the crime
committed to its maximum period.
1=2 "he circumstance need not be alleged in
the information.
In habitual delin8uency 4
1/2 t least three convictions are re8uired.
132 "he crimes are limited and specified toD
1a2 serious physical injuries, 1b2 less
serious physical injuries, 1c2 robbery, 1d2
theft, 1e2 estafa or swindling and 1f2
falsification.
1-2 "here is a time limit of not more than /F
years between every convictions
computed from the first conviction or
release from punishment thereof to
conviction computed from the second
conviction or release therefrom to the
third conviction and so on . . .
192 Habitual delin8uency is a special
aggravating circumstance, hence it
cannot be offset by any mitigating
circumstance. side from the penalty
prescribed by law for the crime
committed, an additional penalty shall be
imposed depending upon whether it is
already the third conviction, the fourth,
the fifth and so on . . .
1=2 "he circumstance must be alleged in the
information7 otherwise the court cannot
ac8uire jurisdiction to impose additional
penalty.
'ecidivism
In recidivism, the emphasis is on the fact that
the offender was previously convicted by final
judgement of a felony and subse8uently found
guilty of another felony embraced in the same
title of the +evised (enal Code. "he law
considers this aggravating when a person has
been committing felonies embraced in the same
title because the implication is that he is
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speciali'ing on such %ind of crime and the law
wants to prevent any speciali'ation. Hence,
ordinarily, when a person commits a crime
under different titles, no aggravating
circumstance is present. It is important that the
conviction which came earlier must refer to the
crime committed earlier than the subse8uent
conviction.
Illustration7
In />?F, committed robbery. $hile the case
was being tried, he committed theft in />?-. He
was found guilty and was convicted of theft also
in />?-. "he conviction became final because
he did not appeal anymore and the trial for his
earlier crime which was robbery ended in />?9
where he was also convicted. He also did not
appeal this decision. Is the accused a recidivistL
"he subse8uent conviction must refer to a
felony committed later in order to constitute
recidivism. "he reason for this is as the time the
first crime was committed, there was no other
crime of which he was convicted so he cannot
be regarded as a repeater.
In recidivism, the crimes committed should be
felonies. +ecidivism cannot be had if the crime
committed is a violation of a special law.
+ecidivism does not prescribe. !o matter how
long ago the offender was convicted, if he is
subse8uently convicted of a crime embraced in
the same title of the +evised (enal Code, it is
ta%en into account as aggravating in imposing
the penalty.
(ardon does not erase recidivism, even if it is
absolute because only excuses the service of
the penalty, but not the conviction.
If the offender has already served his sentence
and he was extended an absolute pardon, the
pardon shall erase the conviction including
recidivism because there is no more penalty so
it shall be understood as referring to the
conviction or the effects of the crime.
+ecidivism may be considered even though not
alleged in the information because this is only a
generic aggravating circumstance.
It is necessary to allege recidivism in the
information, but if the defense does not object to
the presentation of evidence during the trial and
the same was proven, the court shall consider
such aggravating circumstance because it is
only generic.
In recidivism, although the law defines it as a
circumstance where a person having been
convicted by final judgement was previously
convicted also by final judgement for a crime
embraced in the same title in the +evised (enal
Code, it is necessary that the conviction must
come in the order in which they are committed.
uestion ! Answer
"n 1<I:% the offender committed robbery.
-hile the same was being tried in 1<IJ% he
committed theft. "n 1<J;% he was convicted of
theft and he did not appeal this decision. he
trial for robbery ended in 1<J1. May the $udge in
imposing the penalty for robbery consider the
accused a recidivist considering that he was
already convicted in 1<J; for the crime of theft
which is under the same title of the 'evised
!enal )ode as that of robbery(
!o, because the robbery which was
committed earlier would be decided later. It
must be the other way around. "his is because
in />C= when he committed the robbery, there
was no crime committed yet. "hus, even though
in imposing the penalty for the robbery, there
was already a previous conviction, if that
conviction is subse8uent to the commission of
the robbery, he is not a recidivist. If you will
interpret the definition of recidivism, this would
seem to be covered but that is not so.
>abitual delin*uency
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$e have to consider the crimes in it and ta%e
note of the titles of crimes in the +evised (enal
Code.
If the offender had committed and was
convicted of each of the crimes under each
category so that no two crimes fall under the
same title of the +evised (enal Code, you have
a situation where the offender is a habitual
delin8uent but not a recidivist because no two
crimes fall under the same title of the Code.
If the first conviction is for serious physical
injuries or less serious physical injuries and the
second conviction is for robbery, theft or estafa
and the third is for falsification, then the moment
the habitual delin8uent is on his fourth
conviction already, you cannot avoid that he is a
habitual delin8uent and at the same time a
recidivist because at least, the fourth time will
have to fall under any of the three categories.
$hen the offender is a recidivist and at the
same time a habitual delin8uent, the penalty for
the crime for which he will be convicted will be
increased to the maximum period unless offset
by a mitigating circumstance. fter determining
the correct penalty for the last crime committed,
an added penalty will be imposed in accordance
with rticle ,3.
Habitual delin8uency, being a special or specific
aggravating circumstance must be alleged in the
information. If it is not alleged in the information
and in the course of the trial, the prosecution
tried to prove that the offender is a habitual
delin8uent over the objection of the accused,
the court has no jurisdiction to consider the
offender a habitual delin8uent. Even if the
accused is in fact a habitual delin8uent but it is
not alleged in the information, the prosecution
when introducing evidence was objected to, the
court cannot admit the evidence presented to
prove habitual delin8uency over the objection of
the accused.
)n the other hand, recidivism is a generic
aggravating circumstance. It need not be
alleged in the information. "hus, even if
recidivism is not alleged in the information, if
proven during trial, the court can appreciate the
same. If the prosecution tried to prove
recidivism and the defense objected, the
objection should be overruled. "he reason is
recidivism is a generic aggravating
circumstance only. s such, it does not have to
be alleged in the information because even if
not alleged, if proven during trial, the trial court
can appreciate it.
+ight now, the present rule is that it can be
appreciated even if not alleged in the
information. "his is the correct view because
recidivism is a generic aggravating
circumstance. "he reason why habitual
delin8uency cannot be appreciated unless
alleged in the information is because recidivism
has nothing to do with the crime committed.
Habitual delin8uency refers to prior conviction
and therefore this must be brought in the
information before the court can ac8uire
jurisdiction over this matter.
Generally, the procedure you %now that when
the prosecutor alleges habitual delin8uency, it
must specify the crimes committed, the dates
when they were committed, the court which tried
the case, the date when the accused was
convicted or discharged. If these are not
alleged, the information is defective.
However, in a relatively recent ruling of the
0upreme Court, it was held that even though the
details of habitual delin8uency was not set forth
in the information, as long as there is an
allegation there that the accused is a habitual
delin8uent, that is enough to confer jurisdiction
upon the court to consider habitual delin8uency.
In the absence of the details set forth in the
information, the accused has the right to avail of
the so#called bill of particulars. Even in a
criminal case, the accused may file a motion for
bill of particulars. If the accused fails to file such,
he is deemed to have waived the re8uired
particulars and so the court can admit evidence
of the habitual delin8uency, even though over
and above the objection of the defense.
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'eiteracion
"his has nothing to do with the classification of
the felonies. In reiteracion, the offender has
already tasted the bitterness of the punishment.
"his is the philosophy on which the
circumstance becomes aggravating.
It is necessary in order that there be reiteracion
that the offender has already served out the
penalty. If the offender had not yet served out
his penalty, forget about reiteracion. "hat means
he has not yet tasted the bitterness of life but if
he had already served out the penalty, the law
expects that since he has already tasted
punishment, he will more or less refrain from
committing crimes again. "hat is why if the
offender committed a subse8uent felony which
carries with it a penalty lighter than what he had
served, reiteracion is not aggravating because
the law considers that somehow, this fellow was
corrected because instead of committing a
serious crime, he committed a lesser one. If he
committed another lesser one, then he becomes
a repeater.
0o, in reiteracion, the penalty attached to the
crime subse8uently committed should be higher
or at least e8ual to the penalty that he has
already served. If that is the situation, that
means that the offender was never reformed by
the fact that he already served the penalty
imposed on him on the first conviction. However,
if he commits a felony carrying a lighter penalty7
subse8uently, the law considers that somehow
he has been reformed but if he, again commits
another felony which carries a lighter penalty,
then he becomes a repeater because that
means he has not yet reformed.
Mou will only consider the penalty in reiteracion
if there is already a second conviction. $hen
there is a third conviction, you disregard
whatever penalty for the subse8uent crimes
committed. Even if the penalty for the
subse8uent crimes committed are lighter than
the ones already served, since there are already
two of them subse8uently, the offender is
already a repeater.

However, if there is only a second conviction,
pay attention to the penalty attached to the
crime which was committed for the second
crime. "hat is why it is said that reiteracion is
not always aggravating. "his is so because if
the penalty attached to the felony subse8uently
committed is not e8ual or higher than the
penalty already served, even if literally, the
offender is a repeater, repetition is not
aggravating.
Duasi=recidivism
"his is found in rticle /,F. "he offender must
already be convicted by final judgement and
therefore to have served the penalty already, but
even at this stage, he committed a felony before
beginning to serve sentence or while serving
sentence.
IllustrationD
)ffender had already been convicted by final
judgement. 0entence was promulgated and he
was under custody in :untinlupa. $hile he was
in :untinlupa, he escaped from his guard and in
the course of his escape, he %illed someone.
"he %illing was committed before serving
sentence but convicted by final judgement. He
becomes a 8uasi#recidivist because the crime
committed was a felony.
"he emphasis here is on the crime committed
before sentence or while serving sentence
which should be a felony, a violation of the
+evised (enal Code. In so far as the earlier
crime is concerned, it is necessary that it be a
felony.
IllustrationD
"he offender was convicted of homicide. $hile
serving sentence in :untinlupa, he was found
smo%ing marijuana. He was prosecuted for
illegal use of prohibited drugs and was
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convicted. Is he a 8uasi#recidivistL !o, because
the crime committed while serving sentence is
not a felony.
+everse the situation. ssume that the offender
was found guilty of illegal use of prohibited
drugs. $hile he was serving sentence, he got
involved in a 8uarrel and %illed a fellow inmate.
Is he a 8uasi#recidivistL Mes, because while
serving sentence, he committed a felony.
"he emphasis is on the nature of the crime
committed while serving sentence or before
serving sentence. It should not be a violation of
a special law.
Buasi#recidivism is a special aggravating
circumstance. "his cannot be offset by any
mitigating circumstance and the imposition of
the penalty in the maximum period cannot be
lowered by any ordinary mitigating
circumstance. $hen there is a privileged
mitigating circumstance, the penalty prescribed
by law for the crime committed shall be lowered
by / or 3 degrees, as the case may be, but then
it shall be imposed in the maximum period if the
offender is a 8uasi#recidivist.
"n consideration of a price% reward or promise
"he 0upreme Court rulings before indicate that
this circumstance aggravates only the criminal
liability of the person who committed the crime
in consideration of the price, promise, or reward
but not the criminal liability of the person who
gave the price, reward or consideration.
However, when there is a promise, reward or
price offered or given as a consideration for the
commission of the crime, the person ma%ing the
offer is an inducer, a principal by inducement
while the person receiving the price, reward or
promise who would execute the crime is a
principal by direct participation. Hence, their
responsibilities are the same. "hey are both
principals and that is why the recent rulings of
the 0upreme Court are to the effect that this
aggravating circumstance affects or aggravates
not only the criminal liability of the receiver of
the price, reward or promise but also the
criminal liability of the one giving the offer.
,y means of inundation or fire
&ire is not aggravating in the crime of arson.
$henever a %illing is done with the use of fire,
as when to %ill someone, you burn down his
house while the latter is inside, this is murder.
"here is no such crime as murder with arson or
arson with homicide. "he crime committed is
only murder.
If the victim is already dead and the house is
burned, the crime is arson. It is either arson or
murder.
If the intent is to destroy property, the crime is
arson even if someone dies as a conse8uence.
If the intent is to %ill, there is murder even if the
house is burned in the process.
IllustrationD
and 5 were arguing about something. )ne
argument led to another until struc% 5 to death
with a bolo. did not %now that C, the son of 5
was also in their house and who was peeping
through the door and saw what did. fraid
that might %ill him, too, he hid somewhere in
the house. then dragged 5Os body and poured
gasoline on it and burned the house altogether.
s a conse8uence, C was burned and
eventually died too.
s far as the %illing of 5 is concerned, it is
homicide since it is noted that they were
arguing. It could not be murder. s far as the
%illing of C is concerned, the crime is arson
since he intended to burn the house only.
!o such crime as arson with homicide. *aw
enforcers only use this to indicate that a %illing
occurred while arson was being committed. t
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the most, you could designate it as @death as a
conse8uence of arson.A
4vident premeditation
&or evident premeditation to be aggravating, the
following conditions must concurD
1/2 "he time when the accused determined
to commit the crime7
132 n act manifestly indicating that the
accused has clung to his determination7
1-2 0ufficient lapse of time between such
determination and execution, to allow
him to reflect upon the conse8uences of
his act.
Illustration7
, on :onday, thought of %illing 5 on &riday.
%new that 5 is coming home only on &riday so
decided to %ill 5 on &riday evening when he
comes home. )n "hursday, met 5 and %illed
him. Is there evident premeditationL !one but
there is treachery as the attac% was sudden.
Can there be evident premeditation when the
%illing is accidentalL !o. In evident
premeditation, there must be a clear reflection
on the part of the offender. However, if the %illing
was accidental, there was no evident
premeditation. $hat is necessary to show and
to bring about evident premeditation aside from
showing that as some prior time, the offender
has manifested the intention to %ill the victim,
and subse8uently %illed the victim.
IllustrationsD
and 5 fought. told 5 that someday he will %ill
5. )n &riday, %illed 5. and 5 fought on
:onday but since already suffered so many
blows, he told 5, G"his wee% shall not pass, I will
%ill you.G )n &riday, %illed 5. Is there evident
premeditation in both casesL !one in both
cases. $hat condition is missing to bring about
evident premeditationL Evidence to show that
between :onday and &riday, the offender clung
to his determination to %ill the victim, acts
indicative of his having clung to his
determination to %ill 5.
and 5 had a 8uarrel. boxed 5. told 5, GI
will %ill you this wee%.G bought firearms. )n
&riday, he waited for 5 but %illed C instead. Is
there evident premeditationL "here is aberratio
ictus. 0o, 8ualify. Insofar as 5 is concerned, the
crime is attempted murder because there is
evident premeditation. However, that murder
cannot be considered for C. Insofar as C is
concerned, the crime is homicide because there
was no evident premeditation.
Evident premeditation shall not be considered
when the crime refers to a different person other
than the person premeditated against.
$hile it is true that evident premeditation may
be absorbed in treachery because the means,
method and form of attac% may be premeditated
and would be resorted to by the offender. <o
not consider both aggravating circumstances of
treachery and evident premeditation against the
offender. It is only treachery because the
evident premeditation is the very conscious act
of the offender to ensure the execution.
5ut there may be evident premeditation and
there is treachery also when the attac% was so
sudden.
and 5 are enemies. "hey fought on :onday
and parted ways. decided to see% revenge.
He bought a firearm and practiced shooting and
then sought 5. $hen saw 5 in the restaurant
with so many people, did not dare fire at 5 for
fear that he might hit a stranger but instead,
saw a %nife and used it to stab 5 with all
suddenness. Evident premeditation was not
absorbed in treachery because treachery refers
to the manner of committing the crime. Evident
premeditation is always absorbed in treachery.
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"his is one aggravating circumstance where the
offender who premeditated, the law says
evident. It is not enough that there is some
premeditation. (remeditation must be clear. It is
re8uired that there be evidence showing
meditation between the time when the offender
determined to commit the crime and the time
when the offender executed the act. It must
appear that the offender clung to his
determination to commit the crime. "he fact that
the offender premeditated is not prima facie
indicative of evident premeditation as the
meeting or encounter between the offender and
the offended party was only by chance or
accident.
In order for evident premeditation to be
considered, the very personHoffended party
premeditated against must be the one who is
the victim of the crime. It is not necessary that
the victim is identified. It is enough that the
victim is determined so he or she belongs to a
group or class who may be premeditated
against. "his is a circumstance that will 8ualify a
%illing from homicide to murder.
Illustration7
person who has been courting a lady for
several years now has been jilted. 5ecause of
this, he thought of %illing somebody. He, then
bought a %nife, sharpened it and stabbed the
first man he met on the street. It was held that
evident premeditation is not present. It is
essential for this aggravating circumstance for
the victim to be identified from the beginning.
premeditated to %ill any member of particular
fraternity. He then %illed one. "his is murder 4 a
homicide which has been 8ualified into murder
by evident premeditation which is a 8ualifying
circumstance. 0ame where planned to %ill any
member of the Iglesio ni Iristo.
"here are some crimes which cannot be
aggravated by evident premeditation because
they re8uire some planning before they can be
committed. Evident premeditation is part of the
crime li%e %idnapping for ransom, robbery with
force upon things where there is entry into the
premises of the offended party, and estafa
through false pretenses where the offender
employs insidious means which cannot happen
accidentally.
)raft
ggravating in a case where the offenders
pretended to be bona fide passengers of a
jeepney in order not to arouse suspicion, but
once inside the jeepney, robbed the passengers
and the driver 1#eople v. 8ee, decided on
5ecember 27, 19912.
+buse of superior strength
"here must be evidence of notorious ine8uality
of forces between the offender and the offended
party in their age, si'e and strength, and that the
offender too% advantage of such superior
strength in committing the crime. "he mere fact
that there were two persons who attac%ed the
victim does not per se constitute abuse of
superior strength 1#eople v. Carpio, 191
$C2A 122.
reachery
"reachery refers to the employment of means,
method and form in the commission of the crime
which tend directly and specially to insure its
execution without ris% to himself arising from the
defense which the offended party might ma%e.
"he means, method or form employed my be an
aggravating circumstance which li%e availing of
total dar%ness in nighttime or availing of superior
strength ta%en advantage of by the offender,
employing means to wea%en the defense.
Illustration7
and 5 have been 8uarreling for some time.
)ne day, approached 5 and befriended him. 5
accepted. proposed that to celebrate their
renewed friendship, they were going to drin%. 5
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was having too much to drin%. was just waiting
for him to get intoxicated and after which, he
stabbed 5.
pretended to befriend 5, just to intoxicate the
latter. Intoxication is the means deliberately
employed by the offender to wea%en the
defense of the offended party. If this was the
very means employed, the circumstance may be
treachery and not abuse of superior strength or
means to wea%en the defense.
$hat is the essence of treacheryL
"he essence of treachery is that by virtue of the
means, method or form employed by the
offender, the offended party was not able to put
up any defense. If the offended party was able
to put up a defense, even only a to%en one,
there is no treachery anymore. Instead some
other aggravating circumstance may be present
but not treachery anymore.
Illustration7
and 5 8uarreled. However had no chance to
fight with 5 because is much smaller than 5.
thought of %illing 5 but then he cannot just
attac% 5 because of the latterOs si'e. 0o,
thought of committing a crime at nighttime with
the cover of dar%ness. positioned himself in
the dar%est part of the street where 5 passes on
his way home. )ne evening, waited for 5 and
stabbed 5. However, 5 pulled a %nife as well
and stabbed also. was wounded but not
mortal so he managed to run away. 5 was able
to wal% a few steps before he fell and died.
$hat crime was committedL
"he crime is only homicide because the
aggravating circumstance is only nocturnity and
nocturnity is not a 8ualifying circumstance. "he
reason why treachery cannot be considered as
present here is because the offended party was
able to put up a defense and that negates
treachery. In treachery, the offended party, due
to the means, method or form employed by the
offender, the offended party was denied the
chance to defend himself. If because of the
cover of dar%ness, 5 was not able to put up a
defense and was able to flee while 5 died, the
crime is murder because there is already
treachery. In the first situation, the crime was
homicide only, the nighttime is generic
aggravating circumstance.
In the example where pretended to befriend 5
and invited him to celebrate their friendship, if 5
despite intoxication was able to put up some
fight against but eventually, 5 died, then the
attendant circumstance is no longer treachery
but means employed to wea%en the defense.
5ut in murder, this is also a 8ualifying
circumstance. "he crime committed is murder
but then the correct circumstance is not
treachery but means employed to wea%en the
defense.
In the same manner, if the offender avails of the
services of men and in the commission of the
crime, they too% advantage of superior strength
but somehow, the offended party fought bac%,
the crime is still murder if the victim is %illed.
lthough the 8ualifying circumstance is abuse of
superior strength and not treachery, which is
also a 8ualifying circumstance of murder under
rticle 39?.
"reachery is out when the attac% was merely
incidental or accidental because in the definition
of treachery, the implication is that the offender
had consciously and deliberately adopted the
method, means and form used or employed by
him. 0o, if and 5 casually met and there and
then stabbed 5, although stabbing may be
sudden since was not shown to have the
intention of %illing 5, treachery cannot be
considered present.
"here must be evidenced on how the crime was
committed. It is not enough to show that the
victim sustained treacherous wound. ExampleD
had a gunshot wound at the bac% of his head.
"he 0C ruled this is only homicide because
treachery must be proven. It must be shown
that the victim was totally defenseless.
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0uddenness of the attac% does not by itself
constitute treachery in the absence of evidence
that the manner of the attac% was consciously
adopted by the offender to render the offended
party defenseless 1#eople v. .laan, 191 $C2A
"132.
5ut where children of tender years were %illed,
being one year old and /3 years old, the %illing
is murder even if the manner of attac% was not
shown 1#eople v. /a,on, decided on April 37,
19912.
In #eople v. 8apan, decided on !ul' ", 1992,
the accused was prosecuted for robbery with
homicide. +obbery was not proven beyond
reasonable doubt. ccused held liable only for
the %illings. lthough one of the victims was
barely six years old, the accused was convicted
only for homicide, aggravated by dwelling and in
disregard of age.
"reachery not appreciated where 8uarrel and
heated discussion preceded a %illing, because
the victim would be put on guard 1#eople v.
/upo2. 5ut although a 8uarrel preceded the
%illing where the victim was atop a coconut tree,
treachery was considered as the victim was not
in a position to defend himself 1#eople v.
Toribio2.
9istinction between ignominy and cruelty
Ignominy shoc%s the moral conscience of man
while cruelty is physical. Ignominy refers to the
moral effect of a crime and it pertains to the
moral order, whether or not the victim is dead or
alive. Cruelty pertains to physical suffering of
the victim so the victim has to be alive. In plain
language, ignominy is adding insult to injury.
clear example is a married woman being raped
before the eyes of her husband.
In a case where the crime committed is rape
and the accused abused the victims from
behind, the 0upreme Court considered the
crime as aggravated by ignominy. Hence, raping
a woman from behind is ignominous because
this is not the usual intercourse, it is something
which offends the moral of the offended woman.
"his is how animals do it.
In a case of homicide, while the victim after
having been %illed by the offender, the offender
shoved the body inside a canal, ignominy is held
aggravating.
fter having been %illed, the body was thrown
into pile of garbage, ignominy is aggravating.
"he 0upreme Court held that it added shame to
the natural effects of the crime.
Cruelty and ignominy are circumstances brought
about which are not necessary in the
commission of the crime.
Illustration7
and 5 are enemies. upon seeing 5 pulled
out a %nife and stabbed 5 ,F times. $ill that fact
be considered as an aggravating circumstance
of crueltyL !o, there is cruelty only when there
are evidence that the offender inflicted the stab
wounds while enjoying or delighted to see the
victim in pain. &or cruelty to exist as an
aggravating circumstance, there must be
evidence showing that the accused inflicted the
alleged cruel wounds slowly and gradually and
that he is delighted seeing the victim suffer in
pain. In the absence of evidence to this effect,
there is no cruelty. 0ixty stab wounds do not
ipso facto ma%e them aggravating
circumstances of cruelty. "he crime is murder if
,F wounds were inflicted gradually7 absence of
this evidence means the crime committed is
only homicide.
Cruelty is aggravating in rape where the
offender tied the victim to a bed and burnt her
face with a lighted cigarette while raping her
laughing all the way 1#eople v. 8ucas, 181
$C2A 3102.
Hnlawful entry
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.nlawful entry is inherent in the crime of robbery
with force upon things but aggravating in the
crime of robbery with violence against or
intimidation of persons.
Motor vehicle
"he 0upreme Court considers strictly the use of
the word @committedA, that the crime is
committed with the use of a motor vehicle,
motori'ed means of transportation or motori'ed
watercraft. "here is a decision by the Court of
ppeals that a motori'ed bicycle is a motor
vehicle even if the offender used only the foot
pedal because he does not %now how to
operate the motor so if a bicycle is used in the
commission of the crime, motor vehicle
becomes aggravating if the bicycle is motori'ed.
"his circumstance is aggravating only when
used in the commission of the offense. If motor
vehicle is used only in the escape of the
offender, motor vehicle is not aggravating. "o be
aggravating, it must have been used to facilitate
the commission of the crime.
ggravating when a motori'ed tricycle was used
to commit the crime
1rgani#ed or syndicated crime group
In the same amendment to rticle ,3 of the
+evised (enal Code, paragraphs were added
which provide that the maximum penalty shall
be imposed if the offense was committed by any
person who belongs to an organi'ed or
syndicated crime group.
n organi'ed or syndicated crime group means
a group of two or more persons collaborating,
confederating or mutually helping one another
for purposes of gain in the commission of a
crime.
$ith this provision, the circumstance of an
organi'ed or syndicated crime group having
committed the crime has been added in the
Code as a special aggravating circumstance.
"he circumstance being special or 8ualifying, it
must be alleged in the information and proved
during the trial. )therwise, if not alleged in the
information, even though proven during the trial,
the court cannot validly consider the
circumstances because it is not among those
enumerated under rticle /9 of the Code as
aggravating. It is noteworthy, however, that
there is an organi'ed or syndicated group even
when only two persons collaborated,
confederated, or mutually helped one another in
the commission of a crime, which acts are
inherent in a conspiracy. $here therefore,
conspiracy in the commission of the crime is
alleged in the information, the allegation may be
considered as procedurally sufficient to warrant
receiving evidence on the matter during trial and
conse8uently, the said special aggravating
circumstance can be appreciated if proven.
Alternati'e circumstances
&our alternative circumstances
1/2 +elationship7
132 Intoxication7
1-2 <egree of instruction7 and
192 Education.
.se only the term alternative circumstance for
as long as the particular circumstance is not
involved in any case or problem. "he moment it
is given in a problem, do not use alternative
circumstance, refer to it as aggravating or
mitigating depending on whether the same is
considered as such or the other. If relationship
is aggravating, refer to it as aggravating. If
mitigating, then refer to it as such.
Except for the circumstance of intoxication, the
other circumstances in rticle /= may not be
ta%en into account at all when the circumstance
has no bearing on the crime committed. 0o the
court will not consider this as aggravating or
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mitigating simply because the circumstance has
no relevance to the crime that was committed.
<o not thin% that because the article says that
these circumstances are mitigating or
aggravating, that if the circumstance is present,
the court will have to ta%e it as mitigating, if not
mitigating, aggravating. "hat is wrong. It is only
the circumstance of intoxication which if not
mitigating, is automatically aggravating. 5ut the
other circumstances, even if they are present,
but if they do not influence the crime, the court
will not consider it at all. +elationship may not
be considered at all, especially if it is not
inherent in the commission of the crime.
<egree of instruction also will not be considered
if the crime is something which does not re8uire
an educated person to understand.
'elationship
+elationship is not simply mitigating or
aggravating. "here are specific circumstances
where relationship is exempting. mong such
circumstances areD
1/2 In the case of an accessory who is
related to the principal within the
relationship prescribed in rticle 3F7
132 lso in rticle 39C, a spouse does not
incur criminal liability for a crime of less
serious physical injuries or serious
physical injuries if this was inflicted after
having surprised the offended spouse or
paramour or mistress committing actual
sexual intercourse.
1-2 "hose commonly given in rticle --3
when the crime of theft, malicious
mischief and swindling or estafa. "here
is no criminal liability but only civil liability
if the offender is related to the offended
party as spouse, ascendant, or
descendant or if the offender is a brother
or sister or brother in law or sister in law
of the offended party and they are living
together. Exempting circumstance is the
relationship. "his is an absolutory
cause.
0ometimes, relationship is a 8ualifying and not
only a generic aggravating circumstance. In the
crime of 8ualified seduction, the offended
woman must be a virgin and less than /? yrs
old. 5ut if the offender is a brother of the
offended woman or an ascendant of the
offended woman, regardless of whether the
woman is of bad reputation, even if the woman
is ,F years old or more, crime is 8ualified
seduction. In such a case, relationship is
8ualifying.
"ntoxication
"his circumstance is ipso facto mitigating, so
that if the prosecution wants to deny the
offender the benefit of this mitigation, they
should prove that it is habitual and that it is
intentional. "he moment it is shown to be
habitual or intentional to the commission of the
crime, the same will immediately aggravate,
regardless of the crime committed.
Intoxication to be considered mitigating, re8uires
that the offender has reached that degree of
intoxication where he has no control of himself
anymore. "he idea is the offender, because of
the intoxication is already acting under
diminished self control. "his is the rational why
intoxication is mitigating. 0o if this reason is
not present, intoxication will not be considered
mitigating. 0o the mere fact that the offender
has ta%en one or more cases of beer of itself
does not warrant a conclusion that intoxication
is mitigating. "here must be indication that
because of the alcoholic inta%e of the offender,
he is suffering from diminished self control.
"here is diminished voluntariness insofar as his
intelligence or freedom of action is concerned.
It is not the 8uantity of alcoholic drin%. +ather it
is the effect of the alcohol upon the offender
which shall be the basis of the mitigating
circumstance.
Illustration7
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In a case, there were two laborers who were the
best of friends. 0ince it was payday, they
decided to have some good time and ordered
beer. $hen they dran% two cases of beer they
became more tal%ative until they engaged in an
argument. )ne pulled out a %nife and stabbed
the other. $hen arraigned he invo%ed
intoxication as a mitigating circumstance.
Intoxication does not simply mean that the
offender has parta%en of so much alcoholic
beverages. "he intoxication in law re8uires that
because of the 8uality of the alcoholic drin%
ta%en, the offender had practically lost self
control. 0o although the offender may have
parta%en of two cases of beer, but after stabbing
the victim he hailed a tricycle and even
instructed the driver to the place where he is
sleeping and the tricycle could not reach his
house and so he has to alight and wal% to his
house, then there is no diminished self control.
"he 0upreme Court did not give the mitigating
circumstance because of the number of wounds
inflicted upon the victim. "here were // stab
wounds and this, the 0upreme Court said, is
incompatible with the idea that the offender is
already suffering from diminished self control.
)n the contrary, the indication is that the
offender gained strength out of the drin%s he
had ta%en. It is not the 8uantity of drin% that will
determine whether the offender can legally
invo%e intoxication. "he conduct of the offender,
the manner of committing the crime, his
behavior after committing the crime must show
the behavior of a man who has already lost
control of himself. )therwise intoxication cannot
legally be considered.
9egree of instruction and education
"hese are two distinct circumstances. )ne may
not have any degree of instruction but is
nevertheless educated. ExampleD has been
living with professionals for sometime. He may
just be a maid in the house with no degree of
instruction but he may still be educated.
It may happen also that the offender grew up in
a family of professionals, only he is the blac%
sheep because he did not want to go to school.
5ut it does not follow that he is bereft of
education.
If the offender did not go higher than Grade -
and he was involved in a felony, he was
invo%ing lac% of degree of education. "he
0upreme Court held that although he did not
receive schooling, yet it cannot be said that he
lac%s education because he came from a family
where brothers are all professionals. 0o he
understands what is right and wrong.
"he fact that the offender did not have schooling
and is illiterate does not mitigate his liability if
the crime committed is one which he inherently
understands as wrong such as parricide. If a
child or son or daughter would %ill a parent,
illiteracy will not mitigate because the low
degree of instruction has no bearing on the
crime.
In the same manner, the offender may be a
lawyer who committed rape. "he fact that he
has %nowledge of the law will not aggravate his
liability, because his %nowledge has nothing to
do with the commission of the crime. 5ut if he
committed falsification, that will aggravate his
criminal liability, where he used his special
%nowledge as a lawyer.
$ER%ON% W0O ARE CRIMINALLY LIA*LE
.nder the +evised (enal Code, when more
than one person participated in the commission
of the crime, the law loo%s into their participation
because in punishing offenders, the +evised
(enal Code classifies them asD
1/2 principal7
132 accomplice7 or
1-2 accessory.
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"his classification is true only under the +evised
(enal Code and is not used under special laws,
because the penalties under the latter are never
graduated. <o not use the term principal when
the crime committed is a violation of special law.
)nly use the term @offender.A lso only classify
offenders when more than one too% part in the
commission of the crime to determine the proper
penalty to be imposed. 0o, if only one person
committed a crime, do not use principal. .se the
@offenders,A @culprits,A or the @accused.A
$hen a problem is encountered where there are
several participants in the crime, the first thing to
find out is if there is a conspiracy. If there is, as
a general rule, the criminal liability of all will be
the same, because the act of one is the act of
all.
However, if the participation of one is so
insignificant, such that even without his
cooperation, the crime would be committed just
as well, then notwithstanding the existence of a
conspiracy, such offender will be regarded only
as an accomplice. "he reason for this ruling is
that the law favors a milder form of criminal
liability if the act of the participant does not
demonstrate a clear perversity.
s to the liability of the participants in a felony,
the Code ta%es into consideration whether the
felony committed is grave, less grave, or light.
$hen the felony is grave, or less grave, all
participants are criminally liable.
5ut where the felony is only light only the
principal and the accomplice are liable. "he
accessory is not.
5ut even the principal and the accomplice will
not be liable if the felony committed is only light
and the same is not consummated unless such
felony is against persons or property. If they are
not and the same is not consummated, even the
principal and the accomplice are not liable.
"herefore it is only when the light felony is
against person or property that criminal liability
attaches to the principal or accomplice, even
though the felony is only attempted or frustrated,
but accessories are not liable for liable for light
felonies.
$rincipal )( in#ispensa)le cooperation
#istinguishe# from an accomplice
It is not just a matter of cooperation, it is more
than if the crime could hardly be committed. It is
not that the crime would not be committed
because if that is what you would imply it
becomes an ingredient of the crime and that is
not what the law contemplates.
In the case of rape, where three men were
accused, one was on top of the woman, one
held the hands, one held the legs, the 0upreme
Court ruled that all participants are principals.
"hose who held the legs and arms are
principals by indispensable cooperation.
"he accused are father and son. "he father told
his son that the only way to convince the victim
to marry him is to resort to rape. 0o when they
saw the opportunity the young man grabbed the
woman, threw her on the ground and placed
himself on top of her while the father held both
legs of the woman and spread them. "he
0upreme Court ruled that the father is liable only
as an accomplice.
"he point is not just on participation but on the
importance of participation in committing the
crime.
In the first situation, the facts indicate that if the
fellow who held the legs of the victim and
spread them did not do so, the offender on top
could hardly penetrate because the woman was
strong enough to move or resist. In the second
situation, the son was much bigger than the
woman so considering the strength of the son
and the victim, penetration is possible even
without the assistance of the father. "he son
was a robust farm boy and the victim
undernourished. "he act of the father in holding
the legs of the victim merely facilitated the
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penetration but even without it the son would
have penetrated.
"he basis is the importance of the cooperation
to the consummation of the crime. If the crime
could hardly be committed without such
cooperation, then such cooperation would bring
about a principal. 5ut if the cooperation merely
facilitated or hastened the consummation of the
crime, this would ma%e the cooperator merely
an accomplice.
In a case where the offender was running after
the victim with a %nife. nother fellow came and
bloc%ed the way of the victim and because of
this, the one chasing the victim caught up and
stabbed the latter at the bac%. It was held that
the fellow who bloc%ed the victim is a principal
by indispensable cooperation because if he did
not bloc% the way of the victim, the offender
could not have caught up with the latter.
In another case, was mauling 5. C, a friend of
5 tried to approach but < stopped C so that
was able to continuously maul 5. "he liability of
the fellow who stopped the friend from
approaching is as an accomplice.
.nderstandably he did not cooperate in the
mauling, he only stopped to other fellow from
stopping the mauling.
In case of doubt, favor the lesser penalty or
liability. pply the doctrine of pro reo.
$rincipal )( in#ucement
Concept of the inducement 4 one strong enough
that the person induced could hardly resist.
"his is tantamount to an irresistible force
compelling the person induced to carry out the
execution of the crime. Ill advised language is
not enough unless he who made such remar% or
advice is a co#conspirator in the crime
committed.
$hile in the course of a 8uarrel, a person
shouted to , @Iill himQ Iill him.A %illed the
other fellow. Is the person who shouted
criminally liable. Is that inducementL !o. It
must be strong as irresistible force.
"here was a 8uarrel between two families. )ne
of the sons of family came out with a shotgun.
His mother then shouted, @0hootQA. He shot and
%illed someone. Is the mother liableL !o.
Examples of inducementD
@I will give you a large amount of money.A
@I will not marry you if you do not %ill 5A1let us
say he really loves the inducer2.
"hey practically become co#conspirators.
"herefore you do not loo% into the degree of
inducement anymore.
In #eople v. &alderrama, Ernesto shouted to
his younger brother )scar, @5irahin mo na,
birahin mo na.A )scar stabbed the victim. It was
held that there was no conspiracy. ;oint or
simultaneous action per se is not indicia of
conspiracy without showing of common design.
)scar has no rancor with the victim for him to
%ill the latter. Considering that Ernesto had
great moral ascendancy and influence over
)scar being much older, -= years old, than the
latter, who was /? yrs old, and it was Ernesto
who provided his allowance, clothing as well as
food and shelter, Ernesto is principal by
inducement.
In #eople v. Aapina', 18" $C2A 812, the one
who uttered @Iill him, we will bury him,A while
the felonious aggression was ta%ing place
cannot be held liable as principal by
inducement. .tterance was said in the
excitement of the hour, not a command to be
obeyed.
In #eople v. Madali, 188 $C2A "9, the son was
mauled. "he family was not in good graces of
the neighborhood. &ather challenged
everybody and when neighbors approached, he
went home to get a rifle. "he shouts of his wife
@Here comes another, shoot himA cannot ma%e
the wife the principal by inducement. It is not
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the determining cause of the crime in the
absence of proof that the words had great
dominance and influence over the husband.
!either is the wife’s act of beaming the victim
with a flashlight indispensable to the
commission of the %illing. 0he assisted her
husband in ta%ing good aim, but such
assistance merely facilitated the felonious act of
shooting. Considering that it was not so dar%
and the husband could have accomplished the
deed without his wife’s help, and considering
further that doubts must be resolved in favor of
the accused, the liability of the wife is only that
of an accomplice.
Accessories
"wo situations where accessories are not
criminally liableD
1/2 $hen the felony committed is a light
felony7
132 $hen the accessory is related to the
principal as spouse, or as an ascendant,
or descendant or as brother or sister
whether legitimate, natural or adopted or
where the accessory is a relative by
affinity within the same degree, unless
the accessory himself profited from the
effects or proceeds of the crime or
assisted the offender to profit therefrom.
)ne cannot be an accessory unless he %new of
the commission of the crime. )ne must not
have participated in the commission of the
crime. "he accessory comes into the picture
when the crime is already consummated.
nyone who participated before the
consummation of the crime is either a principal
or an accomplice. He cannot be an accessory.
$hen an offender has already involved himself
as a principal or accomplice, he cannot be an
accessory any further even though he performs
acts pertaining to an accessory.
+ccessory as a fence
"he +evised (enal Code defines what manners
of participation shall render an offender liable as
an accessory. mong the enumeration is @by
profiting themselves or by assisting the offender
to profit by the effects of the crimeA. 0o the
accessory shall be liable for the same felony
committed by the principal. However, where the
crime committed by the principal was robbery or
theft, such participation of an accessory brings
about criminal liability under (residential <ecree
!o. /,/3 1nti#&encing *aw2. )ne who
%nowingly profits or assists the principal to profit
by the effects of robbery or theft is not just an
accessory to the crime, but principally liable for
fencing under (residential <ecree !o. /,/3.
ny person who, with intent to gain, ac8uires
andHor sell, possesses, %eeps or in any manner
deals with any article of value which he %nows
or should be %nown to him to be the proceeds of
robbery or theft is considered a @fenceA and
incurs criminal liability for @fencingA under said
decree. "he penalty is higher than that of a
mere accessory to the crime of robbery or theft.
*i%ewise, the participation of one who conceals
the effects of robbery or theft gives rise to
criminal liability for @fencingA, not simply of an
accessory under paragraph 3 of rticle /> of the
Code. :ere possession of any article of value
which has been the subject of robbery or theft
brings about the presumption of @fencingA.
(residential <ecree !o. /,/3 has, therefore,
modified rticle /> of the +evised (enal Code.
uestions ! Answers
1. May one who profited out of the
proceeds of estafa or malversation be
prosecuted under the +nti=8encing &aw(
!o. "here is only a fence when the
crime is theft or robbery. If the crime is
embe''lement or estafa, still an accessory to
the crime of estafa, not a fence.
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2. "f principal committed robbery by
snatching a wristwatch and gave it to his wife to
sell% is the wife criminally liable( )an she be
prosecuted as an accessory and as a fence(
"he liability of the wife is based on her
assisting the principal to profit and that act is
punishable as fencing. 0he will no longer be
liable as an accessory to the crime of robbery.
In both laws, (residential <ecree !o. /,/3 and
the +evised (enal Code, the same act is the
basis of liability and you cannot punish a person
twice for the same act as that would go against
double jeopardy.
+c*uiring the effects of piracy or brigandage
It is relevant to consider in connection with the
criminal liability of accessories under the
+evised (enal Code, the liability of persons
ac8uiring property subject of piracy or
brigandage.
"he act of %nowingly ac8uiring or receiving
property which is the effect or the proceeds of a
crime generally brings about criminal liability of
an accessory under rticle />, paragraph / of
the +evised (enal Code. 5ut if the crime was
piracy of brigandage under (residential <ecree
!o. =-- 1nti#piracy and nti#Highway +obbery
*aw of />C92, said act constitutes the crime of
abetting piracy or abetting brigandage as the
case may be, although the penalty is that for an
accomplice, not just an accessory, to the piracy
or brigandage. "o this end, 0ection 9 of
(residential <ecree !o. =-3 provides that any
person who %nowingly and in any mannerR
ac8uires or receives property ta%en by such
pirates or brigands or in any manner derives
benefit therefromR shall be considered as an
accomplice of the principal offenders and be
punished in accordance with the +ules
prescribed by the +evised (enal Code.
It shall be presumed that any person who does
any of the acts provided in this 0ection has
performed them %nowingly, unless the contrary
is proven.
lthough +epublic ct !o. C,=>, in amending
rticle /33 of the +evised (enal Code,
incorporated therein the crime of piracy in
(hilippine territorial waters and thus
correspondingly superseding (residential
<ecree !o. =-3, 0ection 9 of the <ecree which
punishes said acts as a crime of abetting piracy
or brigandage, still stands as it has not been
repealed nor modified, and is not inconsistent
with any provision of +epublic ct !o. C,=>.
9estroying the corpus delicti
$hen the crime is robbery or theft, with respect
to the second involvement of an accessory, do
not overloo% the purpose which must be to
prevent discovery of the crime.
"he corpus delicti is not the body of the person
who is %illed, even if the corpse is not
recovered, as long as that %illing is established
beyond reasonable doubt, criminal liability will
arise and if there is someone who destroys the
corpus delicti to prevent discovery, he becomes
an accessory.
>arboring or concealing an offender
In the third form or manner of becoming an
accessory, ta%e note that the law distinguishes
between a public officer harboring, concealing
or assisting the principal to escape and a private
citi'en or civilian harboring concealing or
assisting the principal to escape.
In the case of a public officer, the crime
committed by the principal is immaterial. 0uch
officer becomes an accessory by the mere fact
that he helped the principal to escape by
harboring or concealing, ma%ing use of his
public function and thus abusing the same.
)n the other hand, in case of a civilian, the
mere fact that he harbored concealed or
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assisted the principal to escape does not ipso
facto ma%e him an accessory. "he law re8uires
that the principal must have committed the
crime of treason, parricide, murder or attempt on
the life of the Chief Executive. If this is not the
crime, the civilian does not become an
accessory unless the principal is %nown to be
habitually guilty of some other crime. Even if
the crime committed by the principal is treason,
or murder or parricide or attempt on the life of
the Chief Executive, the accessory cannot be
held criminally liable without the principal being
found guilty of any such crime. )therwise the
effect would be that the accessory merely
harbored or assisted in the escape of an
innocent man, if the principal is ac8uitted of the
charges.
IllustrationD
Crime committed is %idnapping for ransom.
(rincipal was being chased by soldiers. His
aunt hid him in the ceiling of her house and aunt
denied to soldiers that her nephew had ever
gone there. $hen the soldiers left, the aunt
even gave money to her nephew to go to the
province. Is aunt criminally liableL !o. rticle
3F does not include an auntie. However, this is
not the reason. "he reason is because one who
is not a public officer and who assists an
offender to escape or otherwise harbors, or
conceals such offender, the crime committed by
the principal must be either treason, parricide
murder or attempt on the life of the Chief
executive or the principal is %nown to be
habitually guilty of some other crime.
"he crime committed by the principal is
determinative of the liability of the accessory
who harbors, conceals %nowing that the crime is
committed. If the person is a public officer, the
nature of the crime is immaterial. $hat is
material is that he used his public function in
assisting escape.
However, although under paragraph - of rticle
/> when it comes to a civilian, the law specifies
the crimes that should be committed, yet there
is a special law which punishes the same act
and it does not specify a particular crime.
(residential <ecree !o. /?3>, which penali'es
obstruction of apprehension and prosecution of
criminal offenders, effective ;anuary /,, />?/,
punishes acts commonly referred to as
@obstructions of justiceA. "his <ecree penali'es
under 0ection /1c2 thereof, the act, inter alia, of
@1c2 Harboring or concealing, or facilitating the
escape of any person he %nows or has
reasonable ground to believe or suspect, has
committed any offense under existing penal
laws in order to prevent his arrest, prosecution
and conviction.A
Here, there is no specification of the crime to be
committed by the offender for criminal liability to
be incurred for harboring, concealing, or
facilitating the escape of the offender, and the
offender need not be the principal 4 unli%e
paragraph -, rticle /> of the Code. "he
subject acts may not bring about criminal liability
under the Code, but under this decree. 0uch an
offender if violating (residential <ecree !o.
/?3> is no longer an accessory. He is simply an
offender without regard to the crime committed
by the person assisted to escape. 0o in the
problem, the standard of the +evised (enal
Code, aunt is not criminally liable because crime
is %idnapping, but under (residential <ecree !o.
/?3>, the aunt is criminally liable but not as an
accessory.
$hether the accomplice and the accessory may
be tried and convicted even before the principal
is found guilty.

"here is an earlier 0upreme Court ruling that the
accessory and accomplice must be charged
together with the principal and that if the latter
be ac8uitted, the accomplice and the accessory
shall not be criminally liable also, unless the
ac8uittal is based on a defense which is
personal only to the principal. lthough this
ruling may be correct if the facts charged do not
ma%e the principal criminally liable at all,
because there is no crime committed.

Met it is not always true that the accomplice and
accessory cannot be criminally liable without the
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principal first being convicted. .nder +ule //F
of the +evised +ules on Criminal (rocedure, it
is re8uired that all those involved in the
commission of the crime must be included in the
information that may be filed. nd in filing an
information against the person involved in the
commission of the crime, the law does not
distinguish between principal, accomplice and
accessory. ll will be accused and whether a
certain accused will be principal or accomplice
or accessory will depend on what the evidence
would show as to his involvement in the crime.
In other words, the liability of the accused will
depend on the 8uantum of evidence adduced by
the prosecution against the particular accused.
5ut the prosecutor must initiate proceedings
versus the principal.
Even if the principal is convicted, if the evidence
presented against a supposed accomplice or a
supposed accessory does not meet the re8uired
proof beyond reasonable doubt, then said
accused will be ac8uitted. 0o the criminal
liability of an accomplice or accessory does not
depend on the criminal liability of the principal
but depends on the 8uantum of evidence. 5ut if
the evidence shows that the act done does not
constitute a crime and the principal is ac8uitted,
then the supposed accomplice and accessory
should also be ac8uitted. If there is no crime,
then there is no criminal liability, whether
principal, accomplice, or accessory.
.nder paragraph -, rticle />, ta%e note in the
case of a civilian who harbors, conceals, or
assists the escape of the principal, the law
re8uires that the principal be found guilty of any
of the specified crimesD treason, parricide, etc.
"he paragraph uses the particular word @guiltyA.
0o this means that before the civilian can be
held liable as an accessory, the principal must
first be found guilty of the crime charged, either
treason, parricide, murder, or attempt to ta%e the
life of the Chief Executive. If the principal is
ac8uitted, that means he is not guilty and
therefore, the civilian who harbored, concealed
or assisted in the escape did not violate art. />.
"hat is as far as the +evised (enal Code is
concerned. 5ut not (residential <ecree !o.
/?3>. "his special law does not re8uire that
there be prior conviction. It is a malum
prohibitum, no need for guilt, or %nowledge of
the crime.
In Taer v. CA, accused received from his co#
accused two stolen male carabaos. Conspiracy
was not proven. "aer was held liable as an
accessory in the crime of cattle rustling under
(residential <ecree !o. =--. J"aer should have
been liable for violation of the nti#fencing law
since cattle rustling is a form of theft or robbery
of large cattle, except that he was not charged
with fencing.K
In Enrile v. Amin, a person charged with
rebellion should not be separately charged
under (residential <ecree !o. /?3>. "he
theory of absorption must not confine itself to
common crimes but also to offenses punished
under special laws which are perpetrated in
furtherance of the political offense.
$ENALTIE%
Measures of pre'ention not consi#ere# as
penalt(
"he following are the measures of prevention or
safety which are not considered penalties under
rticle 39D
1/2 "he arrest and temporary detention of
accused persons as well as their
detention by reason of insanity or
imbecility or illness re8uiring their
confinement in a hospital.
132 "he commitment of a minor to any of the
institutions mentioned in art. ?F for the
purposes specified therein.
1-2 0uspension from the employment or
public office during the trial or in order to
institute proceedings.
192 &ines and other corrective measures
which, in the exercise of their
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administrative disciplinary powers,
superior officials may impose upon their
subordinates.
1=2 <eprivation of rights and reparations
which the civil laws may establish in
penal form.
$hy does the +evised (enal Code specify that
such detention shall not be a penalty but merely
a preventive measureL
"his article gives justification for detaining the
accused. )therwise, the detention would violate
the constitutional provision that no person shall
be deprived of life, liberty and property without
due process of law. nd also, the constitutional
right of an accused to be presumed innocent
until the contrary is proved.
Repeal of Article 9:
-hen may a minor be committed to a
reformatory(
If the minor is between > # /= years old
and acted with discernment, sentence must first
be suspended under the following conditionsD
1/2 Crime committed is not punishable by
death or reclusion perpetua7
132 He is availing of the benefit of
suspension for the first time7
1-2 He must still be a minor at the time of
promulgation of the sentence.
Correlating Article ;< with Article ;=
lthough under rticle 39, the detention of a
person accused of a crime while the case
against him is being tried does not amount to a
penalty, yet the law considers this as part of the
imprisonment and generally deductible from the
sentence.
$hen will this credit applyL If the penalty
imposed consists of a deprivation of liberty. !ot
all who have undergone preventive
imprisonment shall be given a credit
.nder rticle 39, preventive imprisonment of an
accused who is not yet convicted, but by
express provision of rticle39 is not a penalty.
Met rticle 3>, if ultimately the accused is
convicted and the penalty imposed involves
deprivation of liberty, provides that the period
during which he had undergone preventive
detention will be deducted from the sentence,
unless he is one of those dis8ualified under the
law.
0o, if the accused has actually undergone
preventive imprisonment, but if he has been
convicted for two or more crimes whether he is
a recidivist or not, or when he has been
previously summoned but failed to surrender
and so the court has to issue a warrant for his
arrest, whatever credit he is entitled to shall be
forfeited.
If the offender is not dis8ualified from the credit
or deduction provided for in rticle 3> of the
+evised (enal Code, then the next thing to
determine is whether he signed an underta%ing
to abide by the same rules and regulations
governing convicts. If he signed an underta%ing
to abide by the same rules and regulations
governing convicts, then it means that while he
is suffering from preventive imprisonment, he is
suffering li%e a convict, that is why the credit is
full.
5ut if the offender did not sign an underta%ing,
then he will only be subjected to the rules and
regulations governing detention prisoners. s
such, he will only be given ?FS or 9H= of the
period of his preventive detention.
&rom this provision, one can see that the
detention of the offender may subject him only
to the treatment applicable to a detention
prisoner or to the treatment applicable to
convicts, but since he is not convicted yet, while
he is under preventive imprisonment, he cannot
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be subjected to the treatment applicable to
convicts unless he signs and agrees to be
subjected to such disciplinary measures
applicable to convicts.
<etention prisoner has more freedom within the
detention institution rather than those already
convicted. "he convicted prisoner suffers more
restraints and hardship than detention prisoners.
.nder what circumstances may a detention
prisoner be released, even though the
proceedings against him are not yet terminatedL
rticle 3> of the +evised (enal Code has been
amended by a 5atas (ambansa effective that
tool effect on 0eptember 3F, />?F. "his
amendment is found in the +ules of Court,
under the rules on bail in +ule //9 of the +ules
on Criminal (rocedure, the same treatment
exactly is applied there.

In the amendment, the law does not spea% of
credit. $hether the person is entitled to credit
is immaterial. "he discharge of the offender
from preventive imprisonment or detention is
predicated on the fact that even if he would be
found guilty of the crime charged, he has
practically served the sentence already,
because he has been detained for a period
already e8ual to if not greater than the
maximum penalty that would be possibly be
imposed on him if found guilty.
If the crime committed is punishable only by
destierro, the most the offender may be held
under preventive imprisonment is -F days, and
whether the proceedings are terminated or not,
such detention prisoner shall be discharged.
.nderstand the amendment made to rticle 3>.
"his amendment has been incorporated under
+ule //9 precisely to do away with arbitrary
detention.
(roper petition for habeas corpus must be filed
to challenge the legality of the detention of the
prisoner.
uestions ! Answers
"f the offender has already been
released% what is the use of continuing the
proceedings(
"he proceedings will determine whether
the accused is liable or not. If he was criminally
liable, it follows that he is also civilly liable. "he
civil liability must be determined. "hat is why
the trial must go on.
,uration of penalties
'eclusion perpetua
$hat is the duration of reclusion perpetuaL
<o not answer rticle 3C to this 8uestion. "he
proper answer would be that reclusion perpetua
has no duration because this is an indivisible
penalty and indivisible penalties have no
durations.
.nder rticle 3C, those sentenced to reclusion
perpetua shall be pardoned after undergoing the
penalty for -F years, unless such person, by
reason of his conduct or some other serious
cause, shall be considered by the Chief
Executive as unworthy of pardon.
.nder rticle CF, which is the "hree#&old +ule,
the maximum period shall in no case exceed 9F
years. If a convict who is to serve several
sentences could only be made to serve 9F
years, with more reason, one who is sentenced
to a singly penalty of reclusion perpetua should
not be held for more than 9F years.
"he duration of 9F years is not a matter of
provision of law7 this is only by analogy. "here
is no provision of the +evised (enal Code that
one sentenced to reclusion perpetua cannot be
held in jail for 9F years and neither is there a
decision to this effect.
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9estierro
$hat is the duration of destierroL
"he duration of destierro is from six months and
one day, to six year, which is the same as that of
prision correcional and suspension. <estierro is
a principal penalty. It is a punishment whereby
a convict is vanished to a certan place and is
prohibited form entering or coming near that
place designated in the sentence, not less than
3= Ims.. However, the court cannot extend
beyond 3=F Ims. If the convict should enter the
prohibited places, he commits the crime of
evasion of service of sentence under rticle
/=C. 5ut if the convict himself would go further
from which he is vanished by the court, there is
no evasion of sentence because the 39F#Im.
limit is upon the authority of the court in
vanishing the convict.
.nder the +evised (enal Code, destierro is the
penalty imposed in the following situationsD
1/2 $hen a legally married person who had
surprised his or her spouse in the act of
sexual intercourse with another and
while in that act or immediately
thereafter should %ill or inflict serious
physical injuries upon the other spouse,
andHor the paramour or mistress. "his is
found in rticle 39C.
132 In the crime of grave threat or light
threat, when the offender is re8uired to
put up a bond for good behavior but
failed or refused to do so under rticle
3?9, such convict shall be sentenced to
destierro so that he would not be able to
carry out his threat.
1-2 In the crime of concubinage, the penalty
prescribed for the concubine is destierro
under rticle --9.
192 $here the penalty prescribed by law is
arresto mayor, but the offender is entitled
privileged mitigating circumstance and
lowering the prescribed penalty by one
degree, the penalty one degree lower is
destierro. "hus, it shall be the one
imposed.
)ivil "nterdiction
Civil interdiction is an accessory penalty. Civil
interdiction shall deprive the offender during the
time of his sentenceD
1/2 "he rights of parental authority, or
guardianship either as to the person or
property of any ward7
132 :arital authority7
1-2 "he right to manage his property7 and
192 "he right to dispose of such property by
any act or any conveyance inter vivos.
Can a convict execute a last will and testamentL
Mes.
$rimar( classification of penalties
!rincipal penalties and accessory penalties
"he penalties which are both principal and
accessory penalties are the followingD
1/2 (erpetual or temporary absolute
dis8ualification7
132 (erpetual or temporary special
dis8ualification.
uestions ! Answers
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1. "f the penalty of suspension is
imposed as an accessory% what is the duration(
Its duration shall be that of the principal
penalty.
2. "f the penalty of temporary
dis*ualification is imposed as principal penalty%
what is the duration(
"he duration is six years and one day to
/3 years.
3. -hat do we refer to if it is
perpetual or temporary dis*ualification(
$e refer to the duration of the
dis8ualification.
4. -hat do we refer to if it is special
or absolute dis*ualification(
$e refer to the nature of the
dis8ualification.
"he classification of principal and accessory is
found in rticle 3=.
In classifying the penalties as principal and
accessory, what is meant by this is that those
penalties classified as accessory penalties need
not be stated in the sentence. "he accessory
penalties follow the principal penalty imposed
for the crime as a matter of course. 0o in the
imposition of the sentence, the court will specify
only the principal penalty but that is not the only
penalty which the offender will suffer. (enalties
which the law considers as accessory to the
prescribed penalty are automatically imposed
even though they are not stated in the judgment.
s to the particular penalties that follow a
particular principal penalty, rticles 9F to 9= of
the +evised (enal Code shall govern.
If as%ed what are the accessory penalties, do
not just state the accessory penalties. 0tate the
principal penalty and the corresponding
accessory penalties.
(enalties in which other accessory penalties are
inherentD
1/2 rticle 9F. <eath # perpetual absolute
dis8ualification, and civil interdiction
during -F years following date of
sentence7
132 rticle 9/. +eclusion perpetua and
reclusion temporal # civil interdiction for
life or during the period of the sentence
as the case may be, and perpetual
absolute dis8ualification7
1-2 rticle 93. (rision mayor # temporary
absolute dis8ualification perpetual
special dis8ualification from the right of
suffrage7
192 rticle 9-. (rision correccional #
suspension from public office, from the
right to follow a profession or calling, and
perpetual special dis8ualification from
the rights of suffrage if the duration of
said imprisonment shall exceed /?
months.
1=2 rticle 99. rresto # suspension of the
right to hold office and the right of
suffrage during the term of the sentence.
"here are accessory penalties which are true to
other principal penalties. n example is the
penalty of civil interdiction. "his is an accessory
penalty and, as provided in rticle -9, a convict
sentenced to civil interdiction suffers certain
dis8ualification during the term of the sentence.
)ne of the dis8ualifications is that of ma%ing a
conveyance of his property inter vivos.
IllustrationD
has been convicted and is serving the penalty
of prision mayor. $hile serving sentence, he
executed a deed of sale over his only parcel of
land. creditor moved to annul the sale on the
ground that the convict is not 8ualified to
execute a deed of conveyance inter vivos. If
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you were the judge, how would you resolve the
move of the creditor to annul the saleL
Civil interdiction is not an accessory penalty in
prision mayor. "he convict can convey his
property.
uestions ! Answers
-hat accessory penalty is common to all
principal penalties(
Confiscation or forfeiture on the
instruments or proceeds of the crime.
,ond to keep the peace
)ne of the principal penalties common to the
others is bond to %eep the peace. "here is no
crime under the +evised (enal Code which
carries this penalty.
,ond for good behavior
5ond for good behavior is prescribed by the
+evised (enal Code for the crimes of grave
threats and light threats under rticle 3-9. Mou
cannot find this penalty in rticle 3= because
rticle 3= only provides for bond to %eep the
peace. +emember that no felony shall be
punished by any penalty not prescribed by law
prior to its commission pursuant to rticle 3/.
uestions ! Answers

1. "f bond to keep the peace is not
the same as bond for good behavior% are they
one and the same bond that differ only in name(
!o. "he legal effect of each is entirely
different. "he legal effect of a failure to post a
bond to %eep the peace is imprisonment either
for six months or -F days, depending on
whether the felony committed is grave or less
grave on one hand, or it is light only on the other
hand. "he legal effect of failure to post a bond
for good behavior is not imprisonment but
destierro under rticle 3?9. "hus, it is clear that
the two bonds are not the same considering that
the legal effect or the failure to put up the bond
is not the same.
9ivisible and indivisible penalties
$hen we tal% of period, it is implying that the
penalty is divisible.
If, after being given a problem, you were as%ed
to state the period in which the penalty of
reclusion perpetua is to be imposed, remember
that when the penalty is indivisible, there is no
period. <o not tal% of period, because when you
tal% of period, you are implying that the penalty
is divisible because the period referred to is the
minimum, the medium, and the maximum. If it
is indivisible, there is no such thing as minimum,
medium and maximum.
The capital punishment
Mou were as%ed to state whether you are in
favor or against capital punishment.
.nderstand that you are not ta%ing the
examination in "heology. Explain the issue on
the basis of social utility of the penalty. Is it
beneficial in deterring crimes or notL "his
should be the premise of your reasoning.
,esignation of penalt(
0ince the principal penalties carry with them
certain accessory penalties, the courts are not
at liberty to use any designation of the principal
penalty. 0o it was held that when the penalty
should be reclusion perpetua, it is error for the
court to use the term @life imprisonmentA. In
other words, the courts are not correct when
they deviate from the technical designation of
the principal penalty, because the moment they
deviate from this designation, there will be no
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corresponding accessory penalties that will go
with them.
IllustrationD
$hen the judge sentenced the accused to the
penalty of reclusion perpetua, but instead of
saying reclusion perpetua, it sentenced the
accused to life imprisonment, the designation is
wrong.
Reclusion perpetua as mo#ifie#
5efore the enactment of +epublic ct !o. C,=>,
which made amendments to the +evised (enal
Code, the penalty of reclusion perpetua had no
fixed duration. "he +evised (enal Code
provides in rticle 3C that the convict shall be
pardoned after undergoing the penalty for thirty
years, unless by reason of his conduct or some
other serious cause, he is not deserving of
pardon. s amended by 0ection 3/ of +epublic
ct !o. C,=>, the same article now provides
that the penalty of reclusion perpetua shall be
from 3F years to 9F years. 5ecause of this,
speculations arose as to whether it made
reclusion perpetua a divisible penalty.
s we %now, when a penalty has a fixed
duration, it is said to be divisible and, in
accordance with the provisions of rticles ,=
and C,, should be divided into three e8ual
portions to form one period of each of the three
portions. )therwise, if the penalty has no fixed
duration, it is an indivisible penalty. "he nature
of the penalty as divisible or indivisible is
decisive of the proper penalty to be imposed
under the +evised (enal Code inasmuch as it
determines whether the rules in rticle ,- or the
rules in rticle ,9 should be observed in fixing
the penalty.
"hus, consistent with the rule mentioned, the
0upreme Court, by its &irst <ivision, applied
rticle ,= of the Code in imposing the penalty
for rape in #eople v. Conrado 8ucas, /2 3o.
1781:2;:3, Ma' 20, 1991. It divided the time
included in the penalty of reclusion perpetua into
three e8ual portions, with each portion
composing a period as followsD
:inimum # 3F years and one day, to 3, years
and eight months7
:edium # 3, years, eight months and one day,
to -- years and four months7
:aximum # -9 years, four months and one day,
to 9F years.
Considering the aggravating circumstance of
relationship, the Court sentenced the accused to
imprisonment of -9 years, four months and one
day of reclusion perpetua, instead of the straight
penalty of reclusion perpetua imposed by the
trial court. "he appellee seasonably filed a
motion for clarification to correct the duration of
the sentence, because instead of beginning with
-- years, four months and one day, it was
stated as -9 years, four months and one day.
"he issue of whether the amendment of rticle
3C made reclusion perpetua a divisible penalty
was raised, and because the issue is one of first
impression and momentous importance, the
&irst <ivision referred the motion to the Court en
banc.
In a resolution promulgated on ;anuary >, />>=,
the 0upreme Court en banc held that reclusion
perpetua shall remain as an indivisible penalty.
"o this end, the resolution statesD
fter deliberating on the motion
and re#examining the legislation
history of + C,=>, the Court
concludes that although 0ection
/C of + C,=> has fixed the
duration of +eclusion (erpetua
from twenty years 13F2 and one
1/2 to forty 9F years, there was
no clear legislative intent to alter
its original classification as an
indivisible penalty. It shall then
remain as an indivisible penalty.
6erily, if reclusion perpetua was
classified as a divisible penalty,
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then rticle ,- of the +evised
(enal Code would lose its reason
and basis for existence. "o
illustrate, the first paragraph of
0ection 3F of the amended +
!o. ,93= provides for the penalty
of reclusion perpetua to death
whenever the dangerous drugs
involved are of any of the
8uantities stated herein. If rticle
,- of the Code were no longer
applicable because reclusion
perpetua is supposed to be a
divisible penalty, then there
would be no statutory rules for
determining when either
reclusion perpetua or death
should be the imposable penalty.
In fine, there would be no
occasion for imposing reclusion
perpetua as the penalty in drug
cases, regardless of the
attendant modifying
circumstances.
!ow then, if Congress had
intended to reclassify reclusion
perpetua as divisible penalty,
then it should have amended
rticle ,- and rticle C, of the
+evised (enal Code. "he latter
is the law on what are considered
divisible penalties under the
Code and what should be the
duration of the periods thereof.
"here are, as well, other
provisions of the +evised (enal
Code involving reclusion
perpetua, such as rticle 9/ on
the accessory penalties thereof
and paragraphs 3 and - of rticle
,/, which have not been touched
by a corresponding amendment.
.ltimately, the 8uestion arisesD @$hat then may
be the reason for the amendment fixing the
duration of reclusion perpetuaLA "his 8uestion
was answered in the same case of #eople v.
8ucas by 8uoting pertinent portion of the
decision in #eople v. 2e'es, 212 $C2A 172,
thusD
"he imputed duration of
thirty 1-F2 years for reclusion
perpetua, thereof, is only to serve
as the basis for determining the
convict’s eligibility for pardon or
for the application of the three#
fold rule in the service of
penalties. 0ince, however, in all
the graduated scales of penalties
in the Code, as set out in rticle
3=, CF and 3/, reclusion perpetua
is the penalty immediately next
higher to reclusion temporal, it
follows by necessary implication
that the minimum of reclusion
perpetua is twenty 13F2 years and
one 1/2 day with a maximum
duration thereafter to last for the
rest of the convict’s natural life,
although, pursuant to rticle CF, it
appears that the maximum period
for the service of penalties shall
not exceed forty 19F2 years. It
would be legally absurd and
violative of the scales of penalties
in the Code to rec%on the
minimum of +eclusion (erpetua
at thirty 1-F2 years since there
would thereby be a resultant
lacuna whenever the penalty
exceeds the maximum twenty
13F2 years of +eclusion "emporal
but is less than thirty 1-F2 years.
Inno'ations on the imposition of the #eath
penalt(
side form restoring the death penalty for
certain heinous crimes, +epublic ct !o. C,=>
made innovations on the provisions of the
+evised (enal Code regarding the imposition of
the death penaltyD
1/2 rticle 9C has been reworded to
expressly include among the instances
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where the death penalty shall not be
imposed, the case of an offender who is
below /? years old at the time of the
commission of the offense. 5ut even
without this amendment, the death
penalty may not be meted out on an
offender who was below /? years of age
at the time of the commission of the
crime because rticle ,? the lowers the
imposable penalty upon such offenders
by at least one degree than that
prescribed for the crime.
132 In the matter of executing the death
penalty, rticle ?/ has been amended
and, thus, directs that the manner of
putting the convict to death by
electrocution shall be changed to gas
poisoning as soon as the facilities are
provided, and the sentence shall be
carried out not later that one year after
the finality of judgment.
1-2 "he original provision of rticle ?-, anent
the suspension of the execution of the
death penalty for three years if the
convict was a woman, has been deleted
and instead, limits such suspension to
last while the woman was pregnant and
within one year after delivery.
%u)si#iar( penalt(
Is subsidiary penalty an accessory penaltyL !o.
If the convict does not want to pay fine and has
so many friends and wants to prolong his stay in
jail, can he stay there and not pay fineL !o.
fter undergoing subsidiary penalty and the
convict is already released from jail and his
financial circumstances improve, can he be
made to payL Mes, for the full amount with
deduction.
rticle -> deals with subsidiary penalty. "here
are two situations thereD
1/2 $hen there is a principal penalty of
imprisonment or any other principal
penalty and it carries with it a fine7 and
132 $hen penalty is only a fine.
"herefore, there shall be no subsidiary penalty
for the non#payment of damages to the offended
party.
"his subsidiary penalty is one of important
matter under the title of penalty. subsidiary
penalty is not an accessory penalty. 0ince it is
not an accessory penalty, it must be expressly
stated in the sentence, but the sentence does
not specify the period of subsidiary penalty
because it will only be %nown if the convict
cannot pay the fine. "he sentence will merely
provide that in case of non#payment of the fine,
the convict shall be re8uired to save subsidiary
penalty. It will then be the prison authority who
will compute this.
0o even if subsidiary penalty is proper in a case,
if the judge failed to state in the sentence that
the convict shall be re8uired to suffer subsidiary
penalty in case of insolvency to pay the fine,
that convict cannot be re8uired to suffer the
accessory penalty. "his particular legal point is
a bar problem. "herefore, the judgment of the
court must state this. If the judgment is silent,
he cannot suffer any subsidiary penalty.
"he subsidiary penalty is not an accessory
penalty that follows the principal penalty as a
matter of course. It is not within the control of
the convict to pay the fine or not and once the
sentence becomes final and executory and a
writ of execution is issued to collect the fine, if
convict has property to levy upon, the same
shall answer for the fine, whether he li%es it or
not. It must be that the convict is insolvent to
pay the fine. "hat means that the writ of
execution issued against the property of the
convict, if any, is returned unsatisfied.
In #eople v. $ubido, it was held that the convict
cannot choose not to serve, or not to pay the
fine and instead serve the subsidiary penalty.
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subsidiary penalty will only be served if the
sheriff should return the execution for the fine on
the property of the convict and he does not have
the properties to satisfy the writ.
uestions ! Answers
he penalty imposed by the $udge is fine
only. he sheriff then tried to levy the property
of the defendant after it has become final and
executory% but it was returned unsatisfied. he
court then issued an order for said convict to
suffer subsidiary penalty. he convict was
detained% for which reason he filed a petition for
habeas corpus contending that his detention is
illegal. -ill the petition prosper(
Mes. "he judgment became final without
statement as to subsidiary penalty, so that even
if the convict has no money or property to satisfy
the fine, he cannot suffer subsidiary penalty
because the latter is not an accessory and so it
must be expressly stated. If the court
overloo%ed to provide for subsidiary penalty in
the sentence and its attention was later called to
that effect, thereafter, it tried to modify the
sentence to include subsidiary penalty after
period to appeal had already elapsed, the
addition of subsidiary penalty will be null and
void. "his is tantamount to double jeopardy.
If the fine is prescribed with the penalty of
imprisonment or any deprivation of liberty, such
imprisonment should not be higher than six
years or prision correccional. )therwise, there
is no subsidiary penalty.
$hen is subsidiary penalty applied
1/2 If the subsidiary penalty prescribed for
the non#payment of fine which goes with
the principal penalty, the maximum
duration of the subsidiary penalty is one
year, so there is no subsidiary penalty
that goes beyond one year. 5ut this will
only be true if the one year period is
higher than /H- of the principal penalty,
the convict cannot be made to undergo
subsidiary penalty more than /H- of the
duration of the principal penalty and in
no case will it be more than / year # get
/H- of the principal penalty # whichever is
lower.
132 If the subsidiary penalty is to be imposed
for non payment of fine and the principal
penalty imposed be fine only, which is a
single penalty, that means it does not go
with another principal penalty, the most
that the convict will be re8uired to
undergo subsidiary imprisonment is six
months, if the felony committed is grave
or less grave, otherwise, if the felony
committed is slight, the maximum
duration of the subsidiary penalty is only
/= days.
"here are some who use the term subsidiary
imprisonment. "he term is wrong because the
penalty is not only served by imprisonment. "he
subsidiary penalty follows the nature of the
principal penalty. If the principal penalty is
destierro, this being a divisible penalty, and a
penalty with a fixed duration, the non#payment
of the fine will bring about subsidiary penalty.
"his being a restriction of liberty with a fixed
duration under rticle -> for the nonpayment of
fine that goes with the destierro, the convict will
be re8uired to undergo subsidiary penalty and it
will also be in the form of destierro.
IllustrationD
convict was sentenced to suspension and
fine. "his is a penalty where a public officer
anticipates public duties, he entered into the
performance of public office even before he has
complied with the re8uired formalities. 0uppose
the convict cannot pay the fine, may he be
re8uired to undergo subsidiary penaltyL
Mes, because the penalty of suspension has a
fixed duration. .nder rticle 3C, suspension
and destierro have the same duration as prision
correccional. 0o the duration does not exceed
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six years. 0ince it is a penalty with a fixed
duration under rticle ->, when there is a
subsidiary penalty, such shall be /H- of the
period of suspension which in no case beyond
one year. 5ut the subsidiary penalty will be
served not by imprisonment but by continued
suspension.
If the penalty is public censure and fine even if
the public censure is a light penalty, the convict
cannot be re8uired to pay the fine for subsidiary
penalty for the non#payment of the fine because
public censure is a penalty that has no fixed
duration.
<o not consider the totality of the imprisonment
the convict is sentenced to but consider the
totality or the duration of the imprisonment that
the convict will be re8uired to serve under the
"hree#&old +ule. If the totality of the
imprisonment under this rule does not exceed
six years, then, even if the totality of all the
sentences without applying the "hree#&old +ule
will go beyond six years, the convict shall be
re8uired to undergo subsidiary penalty if he
could not pay the fine.
IllustrationD
collector of !$0 collected from =F
houses within a certain locality. $hen he was
collecting !$0 bills, the charges of all
these consumers was a minimum of /F. "he
collector appropriated the amount collected and
so was charged with estafa. He was convicted.
(enalty imposed was arresto mayor and a fine
of (3FF.FF in each count. If you were the judge,
what penalty would you imposeL :ay the
convict be re8uired to undergo subsidiary
penalty in case he is insolvent to pay the fineL
"he "hree#&old +ule should not applied by the
court. In this case of =F counts of estafa, the
penalty imposed was arresto mayor and a fine
of (3FF.FF. rresto mayor T (3FF.FF x =F.
rresto :ayor is six months x =F U 3= years.
(3FF.FF x =F U (/F,FFF.FF. "hus, I would
impose a penalty of arresto mayor and a fine of
(3FF.FF multiplied by =F counts and state
further that @as a judge, I am not in the position
to apply the "hree#&old +ule because the
"hree#&old +ule is to be given effect when the
convict is already serving sentence in the
penitentiiary. It is the prison authority who will
apply the "hree#&old +ule. s far as the court is
concerned, that will be the penalty to be
imposed.A
&or the purposes of subsidiary penalty, apply
the "hree#&old +ule if the penalty is arresto
mayor and a fine of (3FF.FF multiplied by -.
"his means one year and six months only. 0o,
applying the "hree# &old +ule, the penalty does
not go beyond six years. Hence, for the non#
payment of the fine of (/F,FFF.FF, the convict
shall be re8uired to undergo subsidiary penalty.
"his is because the imprisonment that will be
served will not go beyond six years. It will only
be one year and six months, since in the service
of the sentence, the "hree#&old +ule will apply.
It is clearly provided under rticle -> that if the
means of the convict should improve, even if he
has already served subsidiary penalty, he shall
still be re8uired to pay the fine and there is no
deduction for that amount which the convict has
already served by way of subsidiary penalty.
Articles >? an# ><
If crime committed is parricide, penalty is
reclusion perpetua. "he accused, after
committing parricide, voluntarily surrendered
and pleaded guilty of the crime charged upon
arraignment. It was also established that he
was intoxicated, and no aggravating
circumstances were present. $hat penalty
would you imposeL

+eclusion perpetua, because it is an indivisible
penalty.
$hen there are two or more mitigating
circumstances and there is no aggravating
circumstance, penalty to be imposed shall be
one degree lower to be imposed in the proper
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period. <o not apply this when there is one
aggravating circumstance.
IllustrationD
"here are about four mitigating circumstances
and one aggravating circumstance. Court
offsets the aggravating circumstance against the
mitigating circumstance and there still remains
three mitigating circumstances. 5ecause of
that, the judge lowered the penalty by one
degree. Is the judge correctL
!o. In such a case when there are aggravating
circumstances, no matter how many mitigating
circumstances there are, after offsetting, do not
go down any degree lower. "he penalty
prescribed by law will be the penalty to be
imposed, but in the minimum period. Cannot go
below the minimum period when there is an
aggravating circumstance.
Go into the lowering of the penalty by one
degree if the penalty is divisible. 0o do not
apply the rule in paragraph = of rticle ,9 to a
case where the penalty is divisible.
Article >>
$hen there are mitigating circumstance and
aggravating circumstance and the penalty is
only fine, when it is only ordinary mitigating
circumstance and aggravating circumstance,
apply rticle ,,. 5ecause you determine the
imposable fine on the basis of the financial
resources or means of the offender. 5ut if the
penalty would be lowered by degree, there is a
privileged mitigating circumstance or the felony
committed is attempted or frustrated, provided it
is not a light felony against persons or property,
because if it is a light felony and punishable by
fine, it is not a crime at all unless it is
consummated. 0o, if it is attempted or
frustrated, do not go one degree lower because
it is not punishable unless it is a light felony
against person or property where the imposable
penalty will be lowered by one degree or two
degrees.
(enalty prescribed to a crime is lowered by
degrees in the following casesD
1/2 $hen the crime is only attempted or
frustrated
If it is frustrated, penalty is one degree
lower than that prescribed by law.
If it is attempted, penalty is two degrees
lower than that prescribed by law.
"his is so because the penalty
prescribed by law for a crime refers to
the consummated stage.
132 $hen the offender is an accomplice or
accessory only
(enalty is one degree lower in the case
of an accomplice.
(enalty is two degrees lower in the case
of an accessory.
"his is so because the penalty
prescribed by law for a given crime
refers to the consummated stage.
1-2 $hen there is a privilege mitigating
circumstance in favor of the offender, it
will lower the penalty by one or two
degrees than that prescribed by law
depending on what the particular
provision of the +evised (enal Code
states.
192 $hen the penalty prescribed for the
crime committed is a divisible penalty
and there are two or more ordinary
mitigating circumstances and no
aggravating circumstances whatsoever,
the penalty next lower in degree shall be
the one imposed.
1=2 $henever the provision of the +evised
(enal Code specifically lowers the
penalty by one or two degrees than what
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is ordinarily prescribed for the crime
committed.
(enalty commonly imposed by the +evised
(enal Code may be by way of imprisonment or
by way of fine or, to a limited extent, by way of
destierro or dis8ualification, whether absolute or
special.
In the matter of lowering the penalty by degree,
the reference is rticle C/. It is necessary to
%now the chronology under rticle C/ by simply
%nowing the scale. "a%e note that destierro
comes after arresto mayor so the penalty one
degree lower than arresto mayor is not arresto
menor, but destierro. :emori'e the scale in
rticle C/.
In rticle 3C, with respect to the range of each
penalty, the range of arresto menor follows
arresto mayor, since arresto menor is one to -F
days or one month, while arresto mayor is one
month and one day to six months. )n the other
hand, the duration of destierro is the same as
prision correccional which is six months and one
day to six years. 5ut be this as it is, under
rticle C/, in the scale of penalties graduated
according to degrees, arresto mayor is higher
than destierro.
In homicide under rticle 39>, the penalty is
reclusion temporal. )ne degree lower, if
homicide is frustrated, or there is an accomplice
participating in homicide, is prision mayor, and
two degrees lower is prision correccional.
"his is true if the penalty prescribed by the
+evised (enal Code is a whole divisible penalty
## one degree or 3 degrees lower will also be
punished as a whole. 5ut generally, the
penalties prescribed by the +evised (enal Code
are only in periods, li%e prision correcional
minimum, or prision correcional minimum to
medium.
lthough the penalty is prescribed by the
+evised (enal Code as a period, such penalty
should be understood as a degree in itself and
the following rules shall governD
1/2 $hen the penalty prescribed by the
+evised Code is made up of a period,
li%e prision correccional medium, the
penalty one degree lower is prision
correccional minimum, and the penalty
two degrees lower is arresto mayor
maximum. In other words, each degree
will be made up of only one period
because the penalty prescribed is also
made up only of one period.
132 $hen the penalty prescribed by the
Code is made up of two periods of a
given penalty, every time such penalty is
lowered by one degree you have to go
down also by two periods.
IllustrationD
If the penalty prescribed for the crime is
prision correccional medium to
maximum, the penalty one degree lower
will be arresto mayor maximum to prision
correccional minimum, and the penalty
another degree lower will be arresto
mayor minimum to medium. Every
degree will be composed of two periods.
1-2 $hen the penalty prescribed by the
+evised (enal Code is made up of three
periods of different penalties, every time
you go down one degree lower, you
have to go down by three periods.
IllustrationD
"he penalty prescribed by the +evised
(enal Code is prision mayor maximum
to reclusion temporal medium, the
penalty one degree lower is prision
correccional maximum to prision mayor
medium. nother degree lower will be
arresto mayor maximum to prision
correccional medium.
"hese rules have nothing to do with mitigating
or aggravating circumstances. "hese rules refer
to the lowering of penalty by one or two
degrees. s to how mitigating or aggravating
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circumstances may affect the penalty, the rules
are found in rticles ,- and ,9. rticle ,-
governs when the penalty prescribed by the
+evised (enal Code is indivisible. rticle ,9
governs when the penalty prescribed by the
+evised (enal Code is divisible. $hen the
penalty is indivisible, no matter how many
ordinary mitigating circumstances there are, the
prescribed penalty is never lowered by degree.
It ta%es a privileged mitigating circumstance to
lower such penalty by degree. )n the other
hand, when the penalty prescribed by the
+evised (enal Code is divisible, such penalty
shall be lowered by one degree only but
imposed in the proper period, when there are
two or more ordinary mitigating circumstance
and there is no aggravating circumstance
whatsoever.
Article @A B /ines
$ith respect to the penalty of fine, if the fine has
to be lowered by degree either because the
felony committed is only attempted or frustrated
or because there is an accomplice or an
accessory participation, the fine is lowered by
deducting /H9 of the maximum amount of the
fine from such maximum without changing the
minimum amount prescribed by law.
IllustrationD
If the penalty prescribed is a fine ranging from
(3FF.FF to (=FF.FF, but the felony is frustrated
so that the penalty should be imposed one
degree lower, /H9 of (=FF.FF shall be deducted
therefrom. "his is done by deducting (/3=.FF
from (=FF.FF, leaving a difference of (-C=.FF.
"he penalty one degree lower is (-C=.FF. "o
go another degree lower, (/3=.FF shall again
be deducted from (-C=.FF and that would leave
a difference of (3=F.FF. Hence, the penalty
another degree lower is a fine ranging from
(3FF.FF to (3=F.FF. If at all, the fine has to be
lowered further, it cannot go lower than
(3FF.FF. 0o, the fine will be imposed at
(3FF.FF. "his rule applies when the fine has to
be lowered by degree.
Article >>
In so far as ordinary mitigating or aggravating
circumstance would affect the penalty which is
in the form of a fine, rticle ,, of the +evised
(enal Code shall govern. .nder this article, it is
discretionary upon the court to apply the fine
ta%ing into consideration the financial means of
the offender to pay the same. In other words, it
is not only the mitigating andHor aggravating
circumstances that the court shall ta%e into
consideration, but primarily, the financial
capability of the offender to pay the fine. &or the
same crime, the penalty upon an accused who
is poor may be less than the penalty upon an
accused committing the same crime but who is
wealthy
.
&or instance, when there are two offenders who
are co#conspirators to a crime, and their penalty
consists of a fine only, and one of them is
wealthy while the other is a pauper, the court
may impose a higher penalty upon the wealthy
person and a lower fine for the pauper.
(enalty for murder under the +evised (enal
Code is reclusion temporal maximum to death.
0o, the penalty would be reclusion temporal
maximum 4 reclusion perpetua 4 death. "his
penalty made up of three periods.
The Three5/ol# Rule
.nder this rule, when a convict is to serve
successive penalties, he will not actually serve
the penalties imposed by law. Instead, the
most severe of the penalties imposed on him
shall be multiplied by three and the period will
be the only term of the penalty to be served by
him. However, in no case should the penalty
exceed 9F years.
"his rule is intended for the benefit of the
convict and so, you will only apply this provided
the sum total of all the penalties imposed would
be greater than the product of the most severe
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penalty multiplied by three but in no case will the
penalties to be served by the convict be more
than 9F years.
lthough this rule is %nown as the "hree#&old
rule, you cannot actually apply this if the convict
is to serve only three successive penalties. "he
"hree#&old +ule can only be applied if the
convict is to serve four or more sentences
successively. If the sentences would be served
simultaneously, the "hree#&old rule does not
govern.
"he chronology of the penalties as provided in
rticle CF of the +evised (enal Code shall be
followed.
It is in the service of the penalty, not in the
imposition of the penalty, that the "hree#&old
rule is to be applied. "he three#&old rule will
apply whether the sentences are the product of
one information in one court, whether the
sentences are promulgated in one day or
whether the sentences are promulgated by
different courts on different days. $hat is
material is that the convict shall serve more than
three successive sentences.
&or purposes of the "hree#&old +ule, even
perpetual penalties are ta%en into account. 0o
not only penalties with fixed duration, even
penalties without any fixed duration or indivisible
penalties are ta%en into account. &or purposes
of the "hree#&old rule, indivisible penalties are
given e8uivalent of -F years. If the penalty is
perpetual dis8ualification, it will be given and
e8uivalent duration of -F years, so that if he will
have to suffer several perpetual dis8ualification,
under the "hree#&old rule, you ta%e the most
severe and multiply it by three. "he "hree#&old
rule does not apply to the penalty prescribed but
to the penalty imposed as determined by the
court.
IllustrationD
(enalties imposed are 4
)ne prision correcional 4 minimum 4 3 years
and 9 months
)ne arresto mayor # / month and /
day to , months
)ne prision mayor # , years and /
day to /3 years
<o not commit the mista%e of applying the
"hree# &old +ule in this case. !ever apply the
"hree#&old rule when there are only three
sentences. Even if you add the penalties, you
can never arrive at a sum higher than the
product of the most severe multiplied by three.
"he common mista%e is, if given a situation,
whether the "hree#&old +ule could be applied.
If as%ed, if you were the judge, what penalty
would you impose, for purposes of imposing the
penalty, the court is not at liberty to apply the
"hree#&old +ule, whatever the sum total of
penalty for each crime committed, even if it
would amount to /,FFF years or more. It is only
when the convict is serving sentence that the
prison authorities should determine how long he
should stay in jail.
IllustrationD
district engineer was sentenced by the court
to a term of >/9 years in prison.
person was sentenced to three death
sentences. 0ignificanceD If ever granted pardon
for / crime, the two remaining penalties must
still be executed.
"his rule will apply only if sentences are to be
served successively.
Act NoC <:D? EIn#eterminate %entence LawF-
as amen#e#
"hree things to %now about the Indeterminate
0entence *awD
1/2 Its purpose7
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132 Instances when it does not apply7 and
1-2 How it operates
Indeterminate 0entence *aw governs whether
the crime is punishable under the +evised (enal
Code or a special *aw. It is not limited to
violations of the +evised (enal Code.

It applies only when the penalty served is
imprisonment. If not by imprisonment, then it
does not apply.
!urpose
"he purpose of the Indeterminate 0entence law
is to avoid prolonged imprisonment, because it
is proven to be more destructive than
constructive to the offender. 0o, the purpose of
the Indeterminate 0entence *aw in shortening
the possible detention of the convict in jail is to
save valuable human resources. In other
words, if the valuable human resources were
allowed prolonged confinement in jail, they
would deteriorate. (urpose is to preserve
economic usefulness for these people for having
committed a crime ## to reform them rather than
to deteriorate them and, at the same time,
saving the government expenses of maintaining
the convicts on a prolonged confinement in jail.
If the crime is a violation of the +evised (enal
Code, the court will impose a sentence that has
a minimum and maximum. "he maximum of the
indeterminate sentence will be arrived at by
ta%ing into account the attendant mitigating
andHor aggravating circumstances according to
rticle ,9 of the +evised (enal Code. In
arriving at the minimum of the indeterminate
sentence, the court will ta%e into account the
penalty prescribed for the crime and go one
degree lower. $ithin the range of one degree
lower, the court will fix the minimum for the
indeterminate sentence, and within the range of
the penalty arrived at as the maximum in the
indeterminate sentence, the court will fix the
maximum of the sentence. If there is a privilege
mitigating circumstance which has been ta%en in
consideration in fixing the maximum of the
indeterminate sentence, the minimum shall be
based on the penalty as reduced by the
privilege mitigating circumstance within the
range of the penalty next lower in degree.
If the crime is a violation of a special law, in
fixing the maximum of the indeterminate
sentence, the court will impose the penalty
within the range of the penalty prescribed by the
special law, as long as it will not exceed the limit
of the penalty. In fixing the minimum, the court
can fix a penalty anywhere within the range of
penalty prescribed by the special law, as long as
it will not be less than the minimum limit of the
penalty under said law. !o mitigating and
aggravating circumstances are ta%en into
account.
"he minimum and the maximum referred to in
the Indeterminate 0entence *aw are not
periods. 0o, do not say, maximum or minimum
period. &or the purposes of the indeterminate
0entence *aw, use the term minimum to refer to
the duration of the sentence which the convict
shall serve as a minimum, and when we say
maximum, for purposes of I0*$, we refer to
the maximum limit of the duration that the
convict may be held in jail. $e are not referring
to any period of the penalty as enumerated in
rticle C/.
Courts are re8uired to fix a minimum and a
maximum of the sentence that they are to
impose upon an offender when found guilty of
the crime charged. 0o, whenever the
Indeterminate 0entence *aw is applicable, there
is always a minimum and maximum of the
sentence that the convict shall serve. If the
crime is punished by the +evised (enal Code,
the law provides that the maximum shall be
arrived at by considering the mitigating and
aggravating circumstances in the commission of
the crime according to the proper rules of the
+evised (enal Code. "o fix the maximum,
consider the mitigating and aggravating
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circumstances according to the rules found in
rticle ,9. "his means 4
1/2 (enalties prescribed by the law for the
crime committed shall be imposed in the
medium period if no mitigating or
aggravating circumstance7
132 If there is aggravating circumstance, no
mitigating, penalty shall be imposed in
the maximum7
1-2 If there is mitigating circumstance, no
aggravating, penalty shall be in the
minimum7
192 If there are several mitigating and
aggravating circumstances, they shall
offset against each other. $hatever
remains, apply the rules.
1=2 If there are two or more mitigating
circumstance and no aggravating
circumstance, penalty next lower in
degree shall be the one imposed.
+ule under rt ,9 shall apply in determining the
maximum but not in determining the minimum.
In determining the applicable penalty according
to the Indeterminate 0entence *aw, there is no
need to mention the number of years, months
and days7 it is enough that the name of the
penalty is mentioned while the Indeterminate
0entence *aw is applied. "o fix the minimum
and the maximum of the sentence, penalty
under the +evised (enal Code is not the penalty
to be imposed by court because the court must
apply the Indeterminate 0entence *aw. "he
attendant mitigating andHor aggravating
circumstances in the commission of the crime
are ta%en into consideration only when the
maximum of the penalty is to be fixed. 5ut in so
far as the minimum is concerned, the basis of
the penalty prescribed by the +evised (enal
Code, and go one degree lower than that. 5ut
penalty one degree lower shall be applied in the
same manner that the maximum is also fixed
based only on ordinary mitigating
circumstances. "his is true only if the mitigating
circumstance ta%en into account is only an
ordinary mitigating circumstance. If the
mitigating circumstance is privileged, you cannot
follow the law in so far as fixing the minimum of
the indeterminate sentence is concerned7
otherwise, it may happen that the maximum of
the indeterminate sentence is lower than its
minimum.
In one 0upreme Court ruling, it was held that for
purposes of applying the Indeterminate
0entence *aw, the penalty prescribed by the
+evised (enal Code and not that which may be
imposed by court. "his ruling, however, is
obviously erroneous. "his is so because such
an interpretation runs contrary to the rule of pro
reo, which provides that the penal laws should
always be construed an applied in a manner
liberal or lenient to the offender. "herefore, the
rule is, in applying the Indetermiante 0entence
*aw, it is that penalty arrived at by the court
after applying the mitigating and aggravating
circumstances that should be the basis.
Crimes punished under special law carry only
one penalty7 there are no degree or periods.
:oreover, crimes under special law do not
consider mitigating or aggravating circumstance
present in the commission of the crime. 0o in
the case of statutory offense, no mitigating and
no aggravating circumstances will be ta%en into
account. ;ust the same, courts are re8uired in
imposing the penalty upon the offender to fix a
minimum that the convict should serve, and to
set a maximum as the limit of that sentence.
.nder the law, when the crime is punished
under a special law, the court may fix any
penalty as the maximum without exceeding the
penalty prescribed by special law for the crime
committed. In the same manner, courts are
given discretion to fix a minimum anywhere
within the range of the penalty prescribed by
special law, as long as it will not be lower than
the penalty prescribed.
<is8ualification may be divided into three,
according to 4
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1/2 "he time committed7
132 "he penalty imposed7 and
1-2 "he offender involved.
"he Indeterminate 0entence *aw shall not apply
toD
1/2 (ersons convicted of offense punishable
with death penalty or life imprisonment7
132 (ersons convicted of treason,
conspiracy or proposal to commit
treason7
1-2 (ersons convicted of misprision of
treason, rebellion, sedition, espionage7
192 (ersons convicted of piracy7
1=2 (ersons who are habitual delin8uents7
1,2 (ersons who shall have escaped from
confinement or evaded sentence7
1C2 "hose who have been granted
conditional pardon by the Chief
Executive and shall have violated the
term thereto7
1?2 "hose whose maximum term of
imprisonment does not exceed one year,
but not to those already sentenced by
final judgment at the time of the approval
of Indeterminate 0entence *aw.
lthough the penalty prescribed for the felony
committed is death or reclusion perpetua, if after
considering the attendant circumstances, the
imposable penalty is reclusion temporal or less,
the Indeterminate 0entence *aw applies
1#eople v. Cempron, 18: $C2A 2:82.
$resi#ential ,ecree NoC =>9 E$ro)ation LawF
mong the different grounds of partial extinction
of criminal liability, the most important is
probation. (robation is a manner of disposing
of an accused who have been convicted by a
trial court by placing him under supervision of a
probation officer, under such terms and
conditions that the court may fix. "his may be
availed of before the convict begins serving
sentence by final judgment and provided that he
did not appeal anymore from conviction.
$ithout regard to the nature of the crime, only
those whose penalty does not exceed six years
of imprisonment are those 8ualified for
probation. If the penalty is six years plus one
day, he is no longer 8ualified for probation.
If the offender was convicted of several offenses
which were tried jointly and one decision was
rendered where multiple sentences imposed
several prison terms as penalty, the basis for
determining whether the penalty dis8ualifies the
offender from probation or not is the term of the
individual imprisonment and not the totality of all
the prison terms imposed in the decision. 0o
even if the prison term would sum up to more
than six years, if none of the individual penalties
exceeds six years, the offender is not
dis8ualified by such penalty from applying for
probation.
)n the other hand, without regard to the penalty,
those who are convicted of subversion or any
crime against the public order are not 8ualified
for probation. 0o %now the crimes under "itle
III, 5oo% 3 of the +evised (enal Code. mong
these crimes is larms and 0candals, the
penalty of which is only arresto menor or a fine.
.nder the amendment to the (robation *aw,
those convicted of a crime against public order
regardless of the penalty are not 8ualified for
probation.
:ay a recidivist be given the benefit of
(robation *awL
s a general rule, no.
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ExceptionD If the earlier conviction refers to a
crime the penalty of which does not exceed -F
days imprisonment or a fine of not more than
(3FF.FF, such convict is not dis8ualified of the
benefit of probation. 0o even if he would be
convicted subse8uently of a crime embraced in
the same title of the +evised (enal Code as that
of the earlier conviction, he is not dis8ualified
from probation provided that the penalty of the
current crime committed does not go beyond six
years and the nature of the crime committed by
him is not against public order, national security
or subversion.
lthough a person may be eligible for probation,
the moment he perfects an appeal from the
judgment of conviction, he cannot avail of
probation anymore. 0o the benefit of probation
must be invo%ed at the earliest instance after
conviction. He should not wait up to the time
when he interposes an appeal or the sentence
has become final and executory. "he idea is
that probation has to be invo%ed at the earliest
opportunity.
n application for probation is exclusively within
the jurisdiction of the trial court that renders the
judgment. &or the offender to apply in such
court, he should not appeal such judgment.
)nce he appeals, regardless of the purpose of
the appeal, he will be dis8ualified from applying
for (robation, even though he may thereafter
withdraw his appeal.
If the offender would appeal the conviction of
the trial court and the appellate court reduced
the penalty to say, less than six years, that
convict can still file an application for probation,
because the earliest opportunity for him to avail
of probation came only after judgment by the
appellate court.
$hether a convict who is otherwise 8ualified for
probation may be give the benefit of probation
or not, the courts are always re8uired to conduct
a hearing. If the court denied the application for
probation without the benefit of the hearing,
where as the applicant is not dis8ualified under
the provision of the (robation *aw, but only
based on the report of the probation officer, the
denial is correctible by certiorari, because it is
an act of the court in excess of jurisdiction or
without jurisdiction, the order denying the
application therefore is null and void.
(robation is intended to promote the correction
and rehabilitation of an offender by providing
him with individuali'ed treatment7 to provide an
opportunity for the reformation of a penitent
offender which might be less probable if he were
to serve a prison sentence7 to prevent the
commission of offenses7 to decongest our jails7
and to save the government much needed
finance for maintaining convicts in jail
(robation is only a privilege. 0o even if the
offender may not be dis8ualified of probation,
yet the court believes that because of the crime
committed it was not advisable to give probation
because it would depreciate the effect of the
crime, the court may refuse or deny an
application for probation.
Generally, the courts do not grant an application
for probation for violation of the <angerous
<rugs *aw, because of the prevalence of the
crime. 0o it is not along the purpose of
probation to grant the convict the benefit
thereof, just the individual rehabilitation of the
offender but also the best interest of the society
and the community where the convict would be
staying, if he would be released on probation.
"o allow him loose may bring about a lac% of
respect of the members of the community to the
enforcement of penal law. In such a case, the
court even if the crime is probationable may still
deny the benefit of probation.
Consider not only the probationable crime, but
also the probationable penalty. If it were the
non#probationable crime, then regardless of the
penalty, the convict cannot avail of probation.
Generally, the penalty which is not
probationable is any penalty exceeding six
years of imprisonment. )ffenses which are not
probationable are those against natural security,
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those against public order and those with
reference to subversion.
(ersons who have been granted of the benefit
of probation cannot avail thereof for the second
time. (robation is only available once and this
may be availed only where the convict starts
serving sentence and provided he has not
perfected an appeal. If the convict perfected an
appeal, he forfeits his right to apply for
probation. s far as offenders who are under
preventive imprisonment, that because a crime
committed is not bailable or the crime
committed, although bailable, they cannot afford
to put up a bail, upon promulgation of the
sentence, naturally he goes bac% to detention,
that does not mean that they already start
serving the sentence even after promulgation of
the sentence, sentence will only become final
and executory after the lapse of the /=#day
period, unless the convict has waived expressly
his right to appeal or otherwise, he has partly
started serving sentence and in that case, the
penalty will already be final and exeuctory, no
right to probation can be applied for.
(robation shall be denied if the court findsD
1/2 "hat the offender is in need of
correctional treatment that can be
provided most effectively by his
commitment to an institution7
132 "hat there is undue ris% that during the
period of probation the offender will
commit another crime7 or
1-2 (robation will depreciate the seriousness
of the crime.
"he probation law imposes two %inds of
conditionsD
1/2 :andatory conditions7 and
132 <iscretionary conditions.
:andatory conditionsD
1/2 "he convict must report to the (robation
)fficer 1()2 designated in the court
order approving his application for
(robation within C3 hours from receipt of
!otice of such order approving his
application7 and
132 "he convict, as a probationer, must
report to the () at least once a month
during the period of probation unless
sooner re8uired by the ().
"hese conditions being mandatory, the moment
any of these is violate, the probation is
cancelled.
<iscretionary conditionsD
"he trial court which approved the application
for probation may impose any condition which
may be constructive to the correction of the
offender, provided the same would not violate
the constitutional rights of the offender and
subject to this two restrictionsD 1/2 the
conditions imposed should not be unduly
restrictive of the probationer7 and 132 such
condition should not be incompatible with the
freedom of conscience of the probationer
E+TINCTION O/ CRIMINAL LIA*ILITY
lways provide two classifications when
answering this 8uestion.
Criminal liability is totally extinguished as
followsD
1/2 5y the death of the convict as to
personal penalties7 and as to pecuniary
penalties, liability therefore is
extinguished only when the death of the
offender occurs before final judgment
132 5y service of sentence7
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1-2 5y amnesty which completely
extinguished the penalty and all its
effects7
192 5y absolute pardon7
1=2 5y prescription of the crime7
1,2 5y prescription of the penalty7
1C2 5y the marriage of the offended women
as in the crimes of rape, abduction,
seduction and acts of lasciviousness.
Criminal liability is partially extinguished as
followsD
1/2 5y conditional pardon7
132 5y commutation of sentence7
1-2 &or good conduct, allowances which the
culprit may earn while he is serving
sentence7
192 (arole7 and
1=2 (robation.
Total e4tinction of criminal lia)ilit(
mong the grounds for total extinction as well
as those for partial extinction, you cannot find
among them the election to public office. In one
case, a public official was charged before the
0andiganbayan for violation of nti#Graft and
Corrupt (ractices ct. <uring the ensuing
election, he was nevertheless re#elected by the
constituents, one of the defenses raised was
that of condonation of the crime by his
constituents, that his constituents have
pardoned him. "he 0upreme Court ruled that
the re#election to public office is not one of the
grounds by which criminal liability is
extinguished. "his is only true to administrative
cases but not criminal cases.
9eath of the offender
$here the offender dies before final judgment,
his death extinguishes both his criminal and civil
liabilities. 0o while a case is on appeal, the
offender dies, the case on appeal will be
dismissed. "he offended party may file a
separate civil action under the Civil Code if any
other basis for recovery of civil liability exists as
provided under rt //=C Civil Code. 1#eople v.
&a'otas, decided on $eptember 2, 19912
+mnesty and pardon
"he effects of amnesty as well as absolute
pardon are not the same. mnesty erases not
only the conviction but also the crime itself. 0o
that if an offender was convicted for rebellion
and he 8ualified for amnesty, and so he was
given an amnesty, then years later he rebelled
again and convicted, is he a recidivistL !o.
5ecause the amnesty granted to him erased not
only the conviction but also the effects of the
conviction itself.
0uppose, instead of amnesty, what was given
was absolute pardon, then years later, the
offended was again captured and charged for
rebellion, he was convicted, is he a recidivistL
Mes. (ardon, although absolute does not erase
the effects of conviction. (ardon only excuses
the convict from serving the sentence. "here is
an exception to this and that is when the pardon
was granted when the convict had already
served the sentence such that there is no more
service of sentence to be executed then the
pardon shall be understood as intended to erase
the effects of the conviction.
0o if the convict has already served the
sentence and in spite of that he was given a
pardon that pardon will cover the effects of the
crime and therefore, if he will be subse8uently
convicted for a felony embracing the same title
as that crime, he cannot be considered a
recidivist, because the pardon wipes out the
effects of the crime.
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5ut if he was serving sentence when he was
pardoned, that pardon will not wipe out the
effects of the crime, unless the language of the
pardon absolutely relieve the offender of all the
effects thereof. Considering that recidivism
does not prescribe, no matter how long ago was
the first conviction, he shall still be a recidivist.
IllustrationsD
$hen the crime carries with it moral turpitude,
the offender even if granted pardon shall still
remain dis8ualified from those falling in cases
where moral turpitude is a bar.
(edro was prosecuted and convicted of the
crime of robbery and was sentenced to six years
imprisonment or prision correccional. fter
serving sentence for three years, he was
granted absolute pardon. "en years later, (edro
was again prosecuted and convicted of the
crime of theft, a crime embraced in the same
title, this time he shall be a recidivist. )n the
other hand, if he has served all six years of the
first sentence, and his name was included in the
list of all those granted absolute pardon, pardon
shall relieve him of the effects of the crime, and
therefore even if he commits theft again, he
shall not be considered a recidivist.
In Monsanto v. (actoran, !r., 1:7 $C2A 191, it
was held that absolute pardon does not ipso
facto entitle the convict to reinstatement to the
public office forfeited by reason of his
conviction. lthough pardon restores his
eligibility for appointment to that office, the
pardoned convict must reapply for the new
appointment
.
(ardon becomes valid only when there is a final
judgment. If given before this, it is premature
and hence void. "here is no such thing as a
premature amnesty, because it does not re8uire
a final judgment7 it may be given before final
judgment or after it.
!rescription of crime and prescription of the
penalty
(rescription of the crime begins, as a general
rule on the day the crime was committed, unless
the crime was concealed, not public, in which
case, the prescription thereof would only
commence from the time the offended party or
the government learns of the commission of the
crime.
@Commission of the crime is publicA ## "his does
not mean alone that the crime was within public
%nowledge or committed in public.
IllustrationD
In the crime of falsification of a document that
was registered in the proper registry of the
government li%e the +egistry of (roperty or the
+egistry of <eeds of the Civil registry, the
falsification is deemed public from the time the
falsified document was registered or recorded in
such public office so even though, the offended
party may not really %now of the falsification, the
prescriptive period of the crime shall already run
from the moment the falsified document was
recorded in the public registry. 0o in the case
where a deed of sale of a parcel of land which
was falsified was recorded in the corresponding
+egistry of (roperty, the owner of the land came
to %now of the falsified transaction only after /F
years, so he brought the criminal action only
then. "he 0upreme Court ruled that the crime
has already prescribed. &rom the moment the
falsified document is registered in the +egistry
of (roperty, the prescriptive period already
commenced to run.
$hen a crime prescribes, the 0tate loses the
right to prosecute the offender, hence, even
though the offender may not have filed a motion
to 8uash on this ground the trial court, but after
conviction and during the appeal he learned that
at the time the case was filed, the crime has
already prescribed, such accused can raise the
8uestion of prescription even for the first time on
appeal, and the appellate court shall have no
jurisdiction to continue, if legally, the crime has
indeed prescribed.
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"he prevailing rule now is, prescription of the
crime is not waivable, the earlier jurisprudence
to the contrary had already been abrogated or
overruled. :oreover, for purposes of
prescription, the period for filing a complaint or
information may not be extended at all, even
though the last day such prescriptive period falls
on a holiday or a 0unday.
&or instance, light felony prescribes in ,F days
or two months. If the ,F
th
day falls on a 0unday,
the filing of the complaint on the succeeding
:onday is already fatal to the prosecution of the
crime because the crime has already
prescribed.
"he rules on Criminal (rocedure for purposes of
prescription is that the filing of the complaint
even at the public prosecutor’s office suspends
the running of the prescriptive period, but not
the filing with the barangay. 0o the earlier
rulings to the contrary are already abrogated by
express provision of the +evised +ules on
Criminal (rocedure.
"he prescription of the crime is interrupted or
suspended 4
1/2 $hen a complaint is filed in a proper
barangay for conciliation or mediation as
re8uired by Chapter C, *ocal
Government Code, but the suspension
of the prescriptive period is good only for
,F days. fter which the prescription will
resume to run, whether the conciliation
or mediation is terminated for not7
132 $hen criminal case is filed in the
prosecutor’s office, the prescription of
the crime is suspended until the accused
is convicted or the proceeding is
terminated for a cause not attributable to
the accused.
5ut where the crime is subject to 0ummary
(rocedure, the prescription of the crime will be
suspended only when the information is already
filed with the trial court. It is not the filing of the
complaint, but the filing of the information in the
trial which will suspend the prescription of the
crime.
)n the prescription of the penalty, the period will
only commence to run when the convict has
begun to serve the sentence. ctually, the
penalty will prescribe from the moment the
convict evades the service of the sentence. 0o
if an accused was convicted in the trial court,
and the conviction becomes final and executory,
so this fellow was arrested to serve the
sentence, on the way to the penitentiary, the
vehicle carrying him collided with another
vehicle and overturned, thus enabling the
prisoner to escape, no matter how long such
convict has been a fugitive from justice, the
penalty imposed by the trial court will never
prescribe because he has not yet commenced
the service of his sentence. &or the penalty to
prescribe, he must be brought to :untinlupa,
boo%ed there, placed inside the cell and
thereafter he escapes.
$hether it is prescription of crime or prescription
of penalty, if the subject could leave the
(hilippines and go to a country with whom the
(hilippines has no extradition treaty, the
prescriptive period of the crime or penalty shall
remain suspended whenever he is out of the
country.
$hen the offender leaves for a country to which
the (hilippines has an extradition treaty, the
running of the prescriptive period will go on even
if the offender leaves (hilippine territory for that
country. (resently the (hilippines has an
extradition treaty with "aiwan, Indonesia,
Canada, ustralia, .0 and 0wit'erland. 0o if
the offender goes to any of these countries, the
prescriptive period still continues to run.
In the case of the prescription of the penalty, the
moment the convict commits another crime
while he is fugitive from justice, prescriptive
period of the penalty shall be suspended and
shall not run in the meantime. "he crime
committed does not include the initial evasion of
service of sentence that the convict must
perform before the penalty shall begin to
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prescribe, so that the initial crime of evasion of
service of sentence does not suspend the
prescription of penalty, it is the commission of
other crime, after the convict has evaded the
service of penalty that will suspend such period.
Marriage
In the case of marriage, do not say that it is
applicable for the crimes under rticle -99. It is
only true in the crimes of rape, abduction,
seduction and acts of lasciviousness. <o not
say that it is applicable to private crimes
because the term includes adultery and
concubinage. :arriages in these cases may
even compound the crime of adultery or
concubinage. It is only in the crimes of rape,
abduction, seduction and acts of lasciviousness
that the marriage by the offender with the
offended woman shall extinguish civil liability,
not only criminal liability of the principal who
marries the offended woman, but also that of the
accomplice and accessory, if there are any.
Co#principals who did not themselves directly
participate in the execution of the crime but who
only cooperated, will also benefit from such
marriage, but not when such co#principal himself
too% direct part in the execution of the crime.
:arriage as a ground for extinguishing civil
liability must have been contracted in good faith.
"he offender who marries the offended woman
must be sincere in the marriage and therefore
must actually perform the duties of a husband
after the marriage, otherwise, notwithstanding
such marriage, the offended woman, although
already his wife can still prosecute him again,
although the marriage remains a valid marriage.
<o not thin% that the marriage is avoided or
annulled. "he marriage still subsists although
the offended woman may re#file the complaint.
"he 0upreme Court ruled that marriage
contemplated must be a real marriage and not
one entered to and not just to evade punishment
for the crime committed because the offender
will be compounding the wrong he has
committed.
$artial e4tinction of criminal lia)ilit(
Good conduct allowance
"his includes the allowance for loyalty under
rticle >?, in relation to rticle /=?. convict
who escapes the place of confinement on the
occasion of disorder resulting from a
conflagration, earth8ua%e or similar catastrophe
or during a mutiny in which he has not
participated and he returned within 9? hours
after the proclamation that the calamity had
already passed, such convict shall be given
credit of /H= of the original sentence from that
allowance for his loyalty of coming bac%. "hose
who did not leave the penitentiary under such
circumstances do not get such allowance for
loyalty. rticle /=? refers only to those who
leave and return.
!arole
"his correspondingly extinguishes service of
sentence up to the maximum of the
indeterminate sentence. "his is the partial
extinction referred to, so that if the convict was
never given parole, no partial extinction.
CI&IL LIA*ILITY O/ T0E O//EN,ER
Civil liability of the offender falls under three
categoriesD
1/2 +estitution and restoration7
132 +eparation of the damage caused7 and
1-2 Indemnification of conse8uential
damages.
'estitution or restoration
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+estitution or restoration presupposes that the
offended party was divested of property, and
such property must be returned. If the property
is in the hands of a third party, the same shall
nevertheless be ta%en away from him and
restored to the offended party, even though
such third party may be a holder for value and a
buyer in good faith of the property, except when
such third party buys the property from a public
sale where the law protects the buyer.
&or example, if a third party bought a property in
a public auction conducted by the sheriff levied
on the property of a judgment creditor for an
obligation, the buyer of the property at such
execution sale is protected by law. "he
offended party cannot divest him thereof. 0o
the offended party may only resort to reparation
of the damage done from the offender.
0ome believed that this civil liability is true only
in crimes against property, this is not correct.
+egardless of the crime committed, if the
property is illegally ta%en from the offended
party during the commission of the crime, the
court may direct the offender to restore or
restitute such property to the offended party. It
can only be done if the property is brought
within the jurisdiction of that court.
&or example, in a case where the offender
committed rape, during the rape, the offender
got on of the earrings of the victim. $hen
apprehended, the offender was prosecuted for
rape and theft. $hen the offender was as%ed
why he got on of the earrings of the victim, the
offender disclosed that he too% one of the
earrings in order to have a souvenir of the
sexual intercourse. 0upreme Court ruled that
the crime committed is not theft and rape but
rape and unjust vexation for the ta%ing of the
earring. "he latter crime is not a crime against
property, this is a crime against personal
security and liberty under "itle IN of 5oo% II of
the +(C. nd yet, the offender was re8uired to
restore or restitute the earring to the offended
woman.
(roperty will have to be restored to the offended
party even this would re8uire the ta%ing of the
property from a third person. $here personal
property was divested from the offended party
pursuant to the commission of the crime, the
one who too% the same or accepted the same
would be doing so without the benefit of the just
title. 0o even if the property may have been
bought by the third person, the same may be
ta%en from him and restored to the offended
party without an obligation on the part of the
offended party to pay him whatever he paid.
"he right to recover what he has paid will be
against the offender who sold it to him. )n the
other hand, if the crime was theft or robbery, the
one who received the personal property
becomes a fence, he is not only re8uired to
restitute the personal property but he incurs
criminal liability in violation of the nti#&encing
*aw.
If the property cannot be restituted anymore,
then the damage must be repaired, re8uiring the
offender to pay the value thereof, as determined
by the court. "hat value includes the
sentimental value to the offended party, not only
the replacement cost. In most cases, the
sentimental value is higher than the
replacement value. 5ut if what would be
restored is brand new, then there will be an
allowance for depreciation, otherwise, the
offended party is allowed to enrich himself at the
expense of the offender. 0o there will be a
corresponding depreciation and the offended
party may even be re8uired to pay something
just to cover the difference of the value of what
was restored to him.
"he obligation of the offender transcends to his
heirs, even if the offender dies, provided he died
after judgment became final, the heirs shall
assume the burden of the civil liability, but this is
only to the extent that they inherit property from
the deceased, if they do not inherit, they cannot
inherit the obligations.
"he right of the offended party transcends to
heirs upon death. "he heirs of the offended
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party step into the shoes of the latter to demand
civil liability from the offender.
'eparation of the damage caused
In case of human life, reparation of the damage
cause is basically (=F,FFF.FF value of human
life, exclusive of other forms of damages. "his
(=F,FFF.FF may also increase whether such life
was lost through intentional felony or criminal
negligence, whether the result of dolo or culpa.
lso in the crime of rape, the damages awarded
to the offended woman is generally (-F,FFF.FF
for the damage to her honor. In earlier rulings,
the amount varied, whether the offended woman
is younger or a married woman. 0upreme Court
ruled that even if the offended woman does not
adduce evidence or such damage, court can
ta%e judicial notice of the fact that if a woman
was raped, she inevitably suffers damages.
.nder the +evised +ules on Criminal
(rocedure, a private prosecutor can recover all
%inds of damages including attorney’s fee. "he
only limitation is that the amount and the nature
of the damages should be specified. "he
present procedural law does not allow a blan%et
recovery of damages. Each %ind of damages
must be specified and the amount duly proven.
Indemnification of conse8uential damages
Indemnification of conse8uential damages
refers to the loss of earnings, loss of profits.
"his does not refer only to conse8uential
damages suffered by the offended party7 this
also includes conse8uential damages to third
party who also suffer because of the
commission of the crime.
"he offender carnapped a bridal car while the
newly#weds were inside the church. 0ince the
car was only rented, conse8uential damage not
only to the newly#weds but also to the entity
which rented the car to them.
:ost importantly, refer to the persons who are
civilly liable under rticles /F3 and /F-. "his
pertains to the owner, proprietor of hotels, inns,
taverns and similar establishments, an
obligation to answer civilly for the loss or
property of their guests.
.nder rticloe /F3, two conditions must be
present before liability attaches to the in%eepers,
tavern%eepers and proprietorsD
1/2 "he guest must have informed the
management in advance of his having
brought to the premises certain
valuables aside from the usual personal
belongings of the guest7 and
132 "he guest must have followed the rules
and regulations prescribed by the
management of such inn, tavern, or
similar establishment regarding the
safe%eeping of said valuables.
"he 0upreme Court ruled that even though the
guest did not obey the rules and regulations
prescribed by the management for safe%eeping
of the valuables, this does not absolve
management from the subsidiary civil liability.
!on#compliance with such rules and regulations
but the guests will only be regarded as
contributory negligence, but it won’t absolve the
management from civil liability.
*iability specially attaches when the
management is found to have violated any law
or ordinance, rule or regulation governing such
establishment.
Even if the crime is robbery with violence
against or intimidation of persons or committed
by the in%eeper’s employees, management will
be liable, otherwise, not liable because there is
duress from the offender, liable only for theft and
force upon things.
.nder rticle /F-, the subsidiary liability of an
employer or master for the crime committed by
his employee or servant may attach only when
the following re8uisites concurD
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1/2 "he employer must be engaged in
business or in trade or industry while the
accused was his employee7
132 t the time the crime was committed, the
employee#employerr relationship must
be existing between the two7
1-2 "he employee must have been found
guilty of the crime charged and
accordingly held civilly liable7
192 "he writ of execution for the satisfaction
of the civil liability was returned
unsatisfied because the accused#
employee does not have enough
property to pay the civil liability.
$hen these re8uisites concur, the employer will
be subsidiarily civilly liable for the full amount
that his employee was adjudged civilly liable. It
is already settled in jurisprudence that there is
no need to file a civil action against the
employer in order to enforce the subsidiary civil
liability for the crime committed by his
employee, it is enough that the writ of execution
is returned unsatisfied. "here is no denial of
due process of law because the liability of the
employer is subsidiary and not primary. He will
only be liable if his employee does not have the
property to pay his civil liability, since it is the
law itself that provides that such subsidiary
liability exists and ignorance of the law is not an
excuse.
Civil liability of the offender is extinguished in
the same manner as civil obligation is
extinguished but this is not absolutely true.
.nder civil law, a civil obligation is extinguished
upon loss of the thing due when the thing
involved is specific. "his is not a ground
applicable to extinction of civil liability in criminal
case if the thing due is lost, the offender shall
repair the damages caused.
$hen there are several offenders, the court in
the exercise of its discretion shall determine
what shall be the share of each offender
depending upon the degree of participation 4 as
principal, accomplice or accessory. If within
each class of offender, there are more of them,
such as more than one principal or more than
one accomplice or accessory, the liability in
each class of offender shall be subsidiary.
nyone of the may be re8uired to pay the civil
liability pertaining to such offender without
prejudice to recovery from those whose share
have been paid by another.
If all the principals are insolvent, the obligation
shall devolve upon the accomplice1s2 or
accessory1s2. 5ut whoever pays shall have the
right of covering the share of the obligation from
those who did not pay but are civilly liable.
"o relate with rticle -?, when there is an order
or preference of pecuniary 1monetary2 liability,
therefore, restitution is not included here.
"here is not subsidiary penalty for non#payment
of civil liability.
0ubsidiary civil liability is imposed in the
followingD
1/2 In case of a felony committed under the
compulsion of an irresistible force. "he
person who employed the irresistible
force is subsidiarily liable7
132 In case of a felony committed under an
impulse of an e8ual or greater injury.
"he person who generated such an
impulse is subsidiarily liable.
"he owners of taverns, inns, motels, hotels,
where the crime is committed within their
establishment due to noncompliance with
general police regulations, if the offender who is
primarily liable cannot pay, the proprietor, or
owner is subsidiarily liable.
&elonies committed by employees, pupils,
servants in the course of their employment,
schooling or household chores. "he employer,
master, teacher is subsidiarily liable civilly, while
the offender is primarily liable.
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In case the accomplice and the principal cannot
pay, the liability of those subsidiarily liable is
absolute.
COM$LE+ CRIME
(hilosophy behind plural crimesD "he treatment
of plural crimes as one is to be lenient to the
offender, who, instead of being made to suffer
distinct penalties for every resulting crime is
made to suffer one penalty only, although it is
the penalty for the most serious one and is in
the maximum period. (urpose is in the
pursuance of the rule of pro reo.
If be complexing the crime, the penalty would
turn out to be higher, do not complex anymore.
ExampleD :urder and theft 1%illed with
treachery, then stole the right2.
(enaltyD If complex 4 +eclusion temporal
maximum to death.
If treated individually 4 +eclusion temporal to
+eclusion (erpetua.
Complex crime is not just a matter of penalty,
but of substance under the +evised (enal
Code.
(lurality of crimes may be in the form ofD
1/2 Compound crime7
132 Complex crime7 and
1-2 Composite crime.
compound crime is one where a single act
produces two or more crimes.
complex crime strictly spea%ing is one where
the offender has to commit an offense as a
means for the commission of another offense. It
is said that the offense is committed as a
necessary means to commit the other offense.
@!ecessaryA should not be understood as
indispensable, otherwise, it shall be considered
absorbed and not giving rise to a complex
crime.
composite crime is one in which substance is
made up of more than one crime, but which in
the eyes of the law is only a single indivisible
offense. "his is also %nown as special complex
crime. Examples are robbery with homicide,
robbery with rape, rape with homicide. "hese
are crimes which in the eyes of the law are
regarded only as a single indivisible offense.
Composite CrimeH0pecial Complex Crime
"his is one which in substance is made up of
more than one crime but which in the eyes of
the law is only a single indivisible offense. "his
is also %nown as a special complex crime.
Examples are robbery with homicide, robbery
with rape, and rape with homicide.
"he compound crime and the complex crime are
treated in rticle 9? of the +evised (enal Code.
5ut in such article, a compound crime is also
designated as a complex crime, but @complex
crimesA are limited only to a situation where the
resulting felonies are grave andHor less grave.
$hereas in a compound crime, there is no limit
as to the gravity of the resulting crimes as long
as a single act brings about two or more crimes.
0trictly spea%ing, compound crimes are not
limited to grave or less grave felonies but covers
all single act that results in two or more crimes.
IllustrationD
person threw a hand grenade and the people
started scampering. $hen the hand grenade
exploded, no on was seriously wounded all were
mere wounded. It was held that this is a
compound crime, although the resulting felonies
are only slight.
Illustration of a situation where the term
@necessaryA in complex crime should not be
understood as indispensableD
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betting committed during the encounter
between rebels and government troops such
that the homicide committed cannot be
complexed with rebellion. "his is because they
are indispensable part of rebellion. 1CaveatD
)rtega says rebellion can be complexed with
common crimes in discussion on +ebellion2
"he complex crime lies actually in the first form
under rticle /9?.
"he first form of the complex crime is actually a
compound crime, is one where a single act
constitutes two or more grave andHor less grave
felonies. "he basis in complexing or
compounding the crime is the act. 0o that when
an offender performed more than one act,
although similar, if they result in separate
crimes, there is no complex crime at all, instead,
the offender shall be prosecuted for as many
crimes as are committed under separate
information.
$hen the single act brings about two or more
crimes, the offender is punished with only one
penalty, although in the maximum period,
because he acted only with single criminal
impulse. "he presumption is that, since there is
only one act formed, it follows that there is only
one criminal impulse and correctly, only one
penalty should be imposed.
Conversely, when there are several acts
performed, the assumption is that each act is
impelled by a distinct criminal impulse and for
ever criminal impulse, a separate penalty.
However, it may happen that the offender is
impelled only by a single criminal impulse in
committing a series of acts that brought about
more than one crime, considering that Criminal
*aw, if there is only one criminal impulse which
brought about the commission of the crime, the
offender should be penali'ed only once.
"here are in fact cases decided by the 0upreme
Court where the offender has performed a
series of acts but the acts appeared to be
impelled by one and the same impulse, the
ruling is that a complex crime is committed. In
this case it is not the singleness of the act but
the singleness of the impulse that has been
considered. "here are cases where the
0upreme Court held that the crime committed is
complex even though the offender performed
not a single act but a series of acts. "he only
reason is that the series of acts are impelled by
a single criminal impulse.
CONTIN.E, AN, CONTIN.ING CRIME%
In criminal law, when a series of acts are
perpetrated in pursuance of a single criminal
impulse, there is what is called a continued
crime. In criminal procedure for purposes of
venue, this is referred to as a continuing crime.
"he term @continuing crimesA as sometimes
used in lieu of the term @continued crimesA,
however, although both terms are analogous,
they are not really used with the same import.
@Continuing crimeA is the term used in criminal
procedure to denote that a certain crime may be
prosecuted and tried not only before the court of
the place where it was originally committed or
began, but also before the court of the place
where the crime was continued. Hence, the
term @continuing crimeA is used in criminal
procedure when any of the material ingredients
of the crime was committed in different places.
@continued crimeA is one where the offender
performs a series of acts violating one and the
same penal provision committed at the same
place and about the same time for the same
criminal purpose, regardless of a series of acts
done, it is regarded in law as one.
In #eople v. de 8eon, where the accused too%
five roosters from one and the same chic%en
coop, although, the roosters were owned by
different persons, it was held that there is only
one crime of theft committed, because the
accused acted out of a single criminal impulse
only. However performing a series of acts but
this is one and the same intent 0upreme Court
ruled that only one crime is committed under
one information.
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In #eople v. 8a<as, the accused constabulary
soldiers were ordered to march with several
muslims from one barrio to another place.
"hese soldiers feared that on the way, some of
the :uslims may escape. 0o *awas ordered
the men to tie the :uslims by the hand
connecting one with the other, so no one would
run away. $hen the hands of the :uslims were
tied, one of them protested, he did not want to
be included among those who were tied becase
he was a Hajji, so the Hajji remonstrated and
there was commotion. t the height of the
commotion, *awas ordered his men to fire, and
the soldiers mechanically fired. Eleven were
%illed and several others were wounded. "he
8uestion of whether the constabulary soldiers
should be prosecuted for the %illing of each
under a separate information has reached the
0upreme Court. "he 0upreme Court ruled that
the accused should be prosecuted only in one
information, because a complex crime of
multiple homicide was committed by them.
In another case, a band of robbers came across
a compound where a sugar mill is located. "he
wor%ers of said mill have their 8uarters within
the compound. "he band of robbers ransac%ed
the different 8uarters therein. It was held that
there is only one crime committed 4 multiple
robbery, not because of rticle 9? but because
this is a continued crime. $hen the robbers
entered the compound, they were moved by a
single criminal intent. !ot because there were
several 8uarters robbed. "his becomes a
complex crime.
"he definition in rticle 9? is not honored
because the accused did not perform a single
act. "here were a series of acts, but the
decision in the *awas case is correct. "he
confusion lies in this. $hile rticle 9? spea%s of
a complex crime where a single act constitutes
two or more grave or less grave offenses, even
those cases when the act is not a single but a
series of acts resulting to two or more grave and
less grave felonies, the 0upreme Court
considered this as a complex crime when the
act is the product of one single criminal impulse.
If confronted with a problem, use the standard
or condition that it refers not only to the
singleness of the act which brought two or more
grave andHless grave felonies. "he 0upreme
Court has extended this class of complex crime
to those cases when the offender performed not
a single act but a series of acts as long as it is
the product of a single criminal impulse.
Mou cannot find an article in the +evised (enal
Code with respect to the continued crime or
continuing crime. "he nearest article is rticle
9?. 0uch situation is also brought under the
operation of rticle 9?.
In #eople v. /arcia, the accused were convicts
who were members of a certain gang and they
conspired to %ill the other gang. 0ome of the
accused %illed their victims in one place within
the same penitentiary, some %illed the others in
another place within the same penitentiary. "he
0upreme Court ruled that all accused should be
punished under one information because they
acted in conspiracy. "he act of one is the act of
all. 5ecause there were several victims %illed
and some were mortally wounded, the accused
should be held for the complex crime of multiple
homicide with multiple frustrated homicide.
"here is a complex crime not only when there is
a single act but a series of acts. It is correct that
when the offender acted in conspiracy, this
crime is considered as one and prosecuted
under one information. lthough in this case,
the offenders did not only %ill one person but
%illed different persons, so it is clear that in
%illing of one victim or the %illing of another
victim, another act out of this is done
simultaneously. 0upreme Court considered this
as complex. lthough the %illings did not result
from one single act.
In criminal procedure, it is prohibited to charge
more than one offense in an information, except
when the crimes in one information constitute a
complex crime or a special complex crime.
0o whenever the 0upreme Court concludes that
the criminal should be punished only once,
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because they acted in conspiracy or under the
same criminal impulse, it is necessary to
embody these crimes under one single
information. It is necessary to consider them as
complex crimes even if the essence of the crime
does not fit the definition of rt 9?, because
there is no other provision in the +(C.
<uplicity of offenses, in order not to violate this
rule, it must be called a complex crime.
In earlier rulings on abduction with rape, if
several offenders abducted the woman and
abused her, there is multiple rape. "he
offenders are to be convicted of one count of
rape and separately charged of the other rapes.
In #eople v. !ose, there were four participants
here. "hey abducted the woman, after which,
the four too% turns in abusing her. It was held
that each one of the four became liable not only
for his own rape but also for those committed by
the others. Each of the four offenders was
convicted of four rapes. In the eyes of the law,
each committed four crimes of rape. )ne of the
four rapes committed by one of them was
complexed with the crime of abduction. "he
other three rapes are distinct counts of rape.
"he three rapes are not necessary to commit
the other rapes. "herefore, separate
complaintsHinformation.
In #eople v. #abasa, the 0upreme Court
through ;ustice 8uino ruled that there is only
one count of forcible abduction with rape
committed by the offenders who abducted the
two women and abused them several times.
"his was only a dissenting opinion of ;ustice
8uino, that there could be only one complex
crimeof abduction with rape, regardless of the
number of rapes committed because all the
rapes are but committed out of one and the
same lewd design which impelled the offender
to abduct the victim.
In #eople v. &o4as, the 0upreme Court followed
the ruling in #eople v. !ose that the four men
who abducted and abused the offended women
were held liable for one crime 4 one count or
forcible abudction with rape and distinct charges
for rape for the other rapes committed by them.
In #eople v. &ulaon, the 0upreme Court
adopted the dissenting opinion of ;ustice 8uino
in #eople v. #abasa, that when several persons
abducted a woman and abused her, regardless
of the number of rapes committed, there should
only be one complex crime of forcible abduction
with rape. "he rapes committed were in the
nature of a continued crime characteri'ed by the
same lewd design which is an essential element
in the crime of forcible abduction.
"he abuse amounting to rape is complexed with
forcible abduction because the abduction was
already consummated when the victim was
raped. "he forcible abduction must be
complexed therewith. 5ut the multiple rapes
should be considered only as one because they
are in the nature of a continued crime.
!oteD "his is a dangerous view because the
abductors will commit as much rape as they
can, after all, only one complex crime of rape
would arise.
In adultery, each intercourse constitutes one
crime. pparently, the singleness of the act is
not considered a single crime. Each intercourse
brings with it the danger of bringing one stranger
in the family of the husband.
rticle 9? also applies in cases when out of a
single act of negligence or imprudence, two or
more grave or less grave felonies resulted,
although only the first part thereof 1compound
crime2. "he second part of rticle 9? does not
apply, referring to the complex crime proper
because this applies or refers only to a
deliberate commission of one offense to commit
another offense.
However, a light felony may result from criminal
negligence or imprudence, together with other
grave or less grave felonies resulting therefrom
and the 0upreme Court held that all felonies
resulting from criminal negligence should be
made subject of one information only. "he
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reason being that, there is only one information
and prosecution only. )therwise, it would be
tantamount to splitting the criminal negligence
similar to splitting a cause of action which is
prohibited in civil cases.
lthough under rticle 9?, a light felony should
not be included in a complex crime, yet by virtue
of this ruling of the 0upreme Court, the light
felony shall be included in the same information
charging the offender with grave andHor less
grave felonies resulting from the negligence of
rec%less imprudence and this runs counter to
the provision of rticle 9?. 0o while the
0upreme Court ruled that the light felony
resulting from the same criminal negligence
should be complexed with the other felonies
because that would be a blatant violation of
rticle 9?, instead the 0upreme Court stated
that an additional penalty should be imposed for
the light felony. "his would mean two penalties
to be imposed, one for the complex crime and
one for the light felony. It cannot separate the
light felony because it appears that the culpa is
crime itself and you cannot split the crime.
pplying the concept of the @continued crimeA,
the following cases have been treated as
constituting one crime onlyD
1/2 "he theft of /- cows belonging to two
different persons committed by the
accused at the same place and period of
time 1#eople v. Tumlos, ": #,il. 32727
132 "he theft of six roosters belonging to two
different owners from the same coop and
at the same period of time 1#eople v.
!aranillo27
1-2 "he illegal charging of fees for service
rendered by a lawyer every time he
collects veteran’s benefits on behalf of a
client who agreed that attorney’s fees
shall be paid out of such benefits
1#eople v. $abbun, 17 $CA2 10"2.
"he collections of legal fees were
impelled by the same motive, that of
collecting fees for services rendered,
and all acts of collection were made
under the same criminal impulse.
)n the other hand, the 0upreme Court declined
to apply the concept in the following casesD
1/2 "wo Estafa cases, one which was
committed during the period from
;anuary /> to <ecember, />== and the
other from ;anuary />=, to ;uly />=,
1#eople v. 5ic,upa, 13 #,il 37"2. 0aid
acts were committed on two different
occasions7
132 0everal malversations committed in :ay,
;une and ;uly />-, and falsifications to
conceal said offenses committed in
ugust and )ctober, />-,. "he
malversations and falsifications were not
the result of one resolution to embe''le
and falsify 1#eople v. C.-, "" #,il. 30127
1-2 0eventy#five estafa cases committed by
the conversion by the agents of
collections from the customers of the
employer made on different dates.
In the theft cases, the trend is to follow the
single larceny doctrine, that is ta%ing of several
things, whether belonging to the same or
different owners, at the same time and place,
constitutes one larceny only. :any courts have
abandoned the separate larceny doctrine, under
which there was distinct larceny as to the
property of each victim.
lso abandoned is the doctrine that the
government has the discretion to prosecute the
accused for one offense or for as many distinct
offenses as there are victims 10antiago v.
;ustice Garchitorena, decided on <ecember 3,
/>>-2. Here, the accused was charged with
performing a single act 4 that of approving the
legali'ation of aliens not 8ualified under the law.
"he prosecution manifested that they would only
file one information. 0ubse8uently, -3 amended
informations were filed. "he 0upreme Court
directed the prosecution to consolidate the
cases into one offense because 1/2 they were in
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violation of the same law 4 Executive )rder !o.
-397 132 caused injury to one party only 4 the
government7 and 1-2 they were done in the
same day. "he concept of delito continuado has
been applied to crimes under special laws since
in rticle /F, the +evised (enal Code shall be
supplementary to special laws, unless the latter
provides the contrary.
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